THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Law  Library 
University  of  Notre  Dame 


E.C.Strv^r  son 

Hockwe^   -City      Iowa 


KINNE'S 


Revised  Edition,  1897, 

JN  TWO  VOLUMES 

VOL.  II. 


BY  L.  G.  KINNE, 


Ex-Chief  Justice  of  the  Supreme  Court  of  Iowa. 

Law   Lecturer   at   the  Iowa  State  University  at  Iowa  City  and  at  the  Iowa 
College  of  Law  at  Des  Moines,  Iowa. 


: 


CHICAGO: 
CALLAGHAN  AND  COMPANY. 

1898. 


Entered  according  to  Act  of  Congress,  In  the  year  1888, 

By  CALLAGHAN    &    COMPANY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington,   D.  C. 


Entered  according  to  Act  of  Congress,  in  the  year  1898, 

By  CALLAGHAN    &    COMPANY, 
In  the  Office  of  the    Librarian   of  Congress,   at  Washington,   D.  C. 


Composition  by 

The   Brown-Cooper  Typesetting  Co. 
Chicago. 


CONTENTS. 

VOLUME  II. 

CHAPTER  XLVIII. 

OF  GARNISHMENT. 

Sec.  771.  Garnishment,  how  effected. 

772.  Of  taking  the  answer  by  the  sheriff. 

773.  When  garnishee  to  appear  at  court. 

774.  Who  may  be  garnished. 

775.  Who  can  not  be  garnished. 

776.  Of  proceedings  when  garnishee  dies. 

777.  Of  fees  and  mileage  of  the  garnishee. 

778.  Of  waiver  by  garnishee  of  his  exemption. 

779.  Penalty  for  failure  to  attend  and  answer. 

780.  Of  showing  cause  against  the  issuance  of  an  execution — Set- 

ing  aside  default. 

781.  Of  the  garnishee's  liability  for  costs. 

782.  Of  the  garnishee's  exonerating  himself. 

783.  Of  the  garnishee's  liability  for  interest. 

784.  Of  the  position  of  the  garnishee  and  his  rights  generally. 

785.  Of  controverting  the  answer  of  the  garnishee,  and  of  trial. 

786.  Of  notice  to  the  principal  defendant. 

787.  Of  showing  the  exemption  of  the  property,  etc. 

788.  When  judgment  will  be  rendered  against  a  garnishee. 

789.  Of  the  form  of  the  judgment. 

790.  Of  debts  due  by  negotiable  paper. 

791.  Of  conclusiveness  of  the  judgment,  appeals,  etc. 

CHAPTER  XLIX. 

OF  EXECUTIONS  AND  EXEMPTIONS. 

Sec.  792.  Within  what  time  an  execution  may  issue. 

793.  What  judgments  and  orders  are  enforceable  by  execution. 

794.  Into  what  counties  the  writ  may  run. 

795.  When  issued  on  Sunday. 

796.  Of  the  issuance  of  the  writ  and  of  the  duty  of  the  clerk. 

797.  Of  the  requisites  of  the  writ  generally. 

798.  Of  proceedings  when  the  writ  is  issued  to  another  county. 

799.  Of  forms  of  executions. 

800.  When  a  stay  of  execution  is  allowed. 

801.  Of  debts  contracted  prior  to  September  1,  1873. 

iii 


IV  CONTENTS. 

Sec.  802.  Of  stay  bonds  and  their  approval. 

803.  Effect  of  stay  after  execution  has  been  Issued — The  bond.  . 

804.  Of  sureties  preventing  or  determining  the  stay  of  execution. 

805.  Duty  of  sheriff  on  receiving  an  execution. 

806.  Same — When  against  principal  and  surety. 

807.  Of  the  levy  of  the  execution. 

808.  When  sheriff  dies  or  goes  out  of  office. 

809.  How  the  levy  is  made. 

810.  Of  levying  on  judgments,  bank  bills,  etc. 

811.  Of  proceedings  by  garnishment. 

812.  Of  levying  on  mortgaged  chattels. 

813.  Of  the  levy  on  partnership  property,  and  proceedings  there- 

under. 

814.  Of  executions  against  municipal  corporations. 

815.  How  stock  interests  of  the  defendant  in  a  corporation  levied 

on. 

816.  Debtor  may  pay  the  sheriff. 

817.  Effect  of  the  levy — Surplus,  etc. 

818.  When  an  indemnity  bond  may  be  demanded. 

819.  Levy  discharged,  when. 

820.  Of  the  bond,  its  terms  and  conditions. 

821.  Of  the  application  of  proceeds,  etc. 

822.  What  property  is  exempt  from  execution. 

823.  Same — Of  personal  earnings,  etc. 

824.  Same — Of  pension  money. 

825.  Of  insurance  money. 

826.  Same — Of  exemptions  to  unmarried  persons. 

827.  Same — Of  the  head  of  the  family. 

828.  Same — When  exemptions  not  allowed — Of  absconding,  etc. 

829.  Of  other  exemptions. 

830.  Of  waiver  of  right  of  exemption. 

831.  Of  securing  the  claims  of  laborers  of  insolvent  corporations. 

832.  Of  depriving  persons  of  the  benefit  of  the  exemption  laws. 

833.  Of  exchange  of  exempt  property,  liens,  etc. 

834.  Of  construction  of  the  statute,  remedy,  etc. 

CHAPTER  L. 

OF  PROCEEDINGS  AUXILIARY  TO   EXECUTION. 

Sec.  835.  Of  proceedings  after  execution  is  returned. 

836.  Of  proceedings  before  execution  is  returned. 

837.  Of  granting  the  order. 

838.  Of  the  examination  of  the  debtor. 

839.  Of  power  of  the  court  or  officer  on  the  hearing. 

840.  Of  disposal  of  equitable  interests  in  lands. 

841.  Of  debtor  in  contempt. 

842.  When  a  warrant  of  arrest  will  issue. 

843.  When  the  debtor  may  give  bond. 

844.  Of  the  effect  of  the  statute. 

845.  Of  compensation  of  officers,  etc. 


CONTENTS.  V 

Sec.  846.  Of  actions  by  equitable  proceedings. 

847.  Of  the  petition  in  equity  supplemental  to  execution. 

848.  Of  the  answers. 

849.  Of  the  lien. 

850.  Of  enforcing  surrender  of  property. 

CHAPTER  LI. 

OF  ACTIONS  FOR  THE  RECOVERY  OF  REAL  PROPERTY. 

Sec.  851.  When  an  action  of  right  will  lie. 

852.  When  an  action  to  quiet  title  will  lie. 

853.  Of  the  parties. 

854.  Of  proceedings  in  an  action  to  recover  real  property. 

855.  Of  proceedings  in  an  action  to  quiet  title. 

856.  Of  service  of  notice. 

857.  Of  the  petition  in  an  action  of  right. 

858.  Of  the  answer. 

859.  Of  practice. 

860.  Of  the  verdict 

861.  Of  judgment. 

862.  Of  limitations,  etc. 

863.  Of  tenants. 

864.  Of  notice  in  actions  to  quiet  title. 

865.  Of  the  petition  to  quiet  title. 

866.  Of  disclaimer  and  costs. 

867.  Of  new  trials. 

868.  Of  appeals. 

869.  Of  constructive  notice. 

CHAPTER  LIT. 

OF  ACTIONS  ON  OFFICIAL   SECURITIES  AND  FOR  FINES   AND 

FORFEITURES. 

Sec.  870.  Of  bonds  of  public  officers. 

871.  When  the  action  lies. 

872.  May  be  several  actions  on  the  same  security. 

873.  Extent  of  liability  of  sureties. 

874.  Of  the  petition. 

875.  Fines   and   forfeiture. 

876.  Of  the  petition  in  cases  of  forfeiture. 

877.  To   what  county   fines   belong. 

878.  Effect  of  paying  part  of  a  fine. 

879.  Of   recovery   of   fine   paid. 

CHAPTER  LIII. 

OF   ACTIONS    AGAINST    RAILWAY    COMPANIES    FOR    DAMAGES 
CAUSED  BY  FIRE,  AND  FOR  INJURIES  TO  STOCK. 

Sec.  880.    Of  former  statutes. 

881.  Of  the  liability  under  the  present  statute. 

882.  Of  liability  of  company  operating  a  road. 


VI.  CONTEXTS. 

Sec.  883.  Of  contributory  negligence. 

884.  Of   the    evidence. 

885.  Of    damages. 

886.  Of  the   petition. 

887.  Of  liability  of  railway  companies  for  killing  stock,  etc. 

888.  Same — Of   stock    "running    at   large." 

889.  Same — Of  fencing  at  depot  grounds  and  highways. 

890.  Same — Of    failure   to    repair    fences. 

891.  Same — Of  double  damages. 

892.  Of  the  affidavit  and  notice. 

893.  Of   practice,   evidence,   etc. 

894.  Of  speed  of  trains. 

CHAPTER  LIV. 

OF  ACTIONS  OF  REPLEVIN. 

Sec.  895.  When  the  action  lies. 

896.  When  the  action  does  not  lie. 

897.  Of  place   of  bringing   suit. 

898.  Of  the  parties. 

899.  Of  the  proceedings. 

900.  Of  the  petition. 

901.  Of  the  bond. 

902.  Of  the  writ  of  replevin. 

903.  Of  service  of  the  writ. 

904.  Of  the  delivery  bond. 

905.  Of  the  sheriff's  return. 

906.  Of   pleadings,   practice,   evidence,   etc. 

907.  Of  the  verdict. 

908.  Of  the  judgment,  etc. 

909.  Of  the  execution. 

910.  Of  proceedings  when  property  has  been  concealed. 

911.  Of  detinue. 

CHAPTER  LV. 

OF  ARBITRATION. 

Sec.  912.  What  may  be  submitted. 

913.  Of  the  submission. 

914.  Of  the  powers  of  the  arbitrators. 

915.  Of  the  award. 

916.  Of  proceedings  on   an   award   in   court. 

917.  Of  bonds  to   abide   the   award. 

918.  Of  common  law  submissions  and  awards. 

919.  Of  the  action  on  the  award  or  bond. 

CHAPTER  LVI. 

OF  THE  ADMISSION  OF  ATTORNEYS. 

Sec.  920.  Of  statutory  provisions. 

921.  Of  rules  of  the  supreme  court. 


CONTEXTS.  Vlt 

CHAPTER  LVII. 

OF  THE  ADMINISTRATION  OF  OATHS. 
Sec.  922.    Who  may  administer. 

CHAPTER  LVIII. 

OF  ASSIGNMENTS  FOR  THE  BENEFIT  OF  CREDITORS. 

Sec.  923.  When  valid  as  a  general  assignment. 

924.  When  valid  as  a  partial  assignment. 

925.  Of  assignments  embraced  in  several  instruments. 

926.  Of    defective    assignments. 

927.  Of  insolvency. 

928.  Of  assignments  by  partners. 

929.  Of  the  inventory. 

930.  Of  property  passed  by  the  assignment. 

931.  Of  the  rights  of  the  assignee. 

932.  Of  the  duty  of  the  assignee. 

933.  Of  the  notice. 

934.  Of  the  filing  of  claims. 

935.  Of  claims  filed  after  three  months. 

936.  Of  the  assignees  report  of  creditors. 

937.  Of  contesting  claims. 

938.  Of  priority  of  taxes. 
939  Of   preferred   claims. 

940.  Of  dividends. 

941.  Of  the  settlement. 

942.  Of  sale  of  the  property. 

943.  Of  removal   of  the  assignee. 

944.  Of  the  death  or  misconduct  of  the  assignee. 

CHAPTER  LIX. 

OF  THE  WRIT  OF  CERTIORARI. 

Sec.  945.  When  the  action  will  lie. 

946.  When  the  action  will  not  lie. 

947.  Of  parties  to  the  action. 

948.  What  court  may  grant  the  writ. 

949.  Of  the  proceedings. 

950.  Of  the  petition  for  the  writ  and  of  notice. 

951.  Of  the  writ  and  of  service  and  return. 

952.  Of  the  hearing. 

953.  Of  limitation  of  the  action,  etc.  ' 

CHAPTER  LX. 

OF  CHATTEL  MORTGAGES. 

Sec.  954.     Of  mortgages  on  after  acquired  property. 

955.  Of  mortgages  on  growing  crops,  and  crops  to  be  grown. 

956.  Of  mortgages  of  book  accounts. 


Vlll  CONTENTS. 

Sec.  957.  Description  of  the  property. 

958.  Of  the  effect  of  retention  of  possession  by  the  mortgagor,  and 

of  sale  by  him  of  the  property. 

959.  Of  the  effect  of  agreements  not  to  record. 

960.  Of  questions  of  priority  over  landlord's  liens. 

961.  Of  priority  of  the  lien  generally. 

962.  Of  mortgages  between  husband  and  wife. 

963.  When  an  instrument  is  a  chattel  mortgage,  and  when  an 

assignment  for  the  benefit  of  creditors. 

964.  Of  agreements  between  mortgagor  and  mortgagee  regarding 

the  time  of  sale. 

965.  Of  second  mortgages. 

966.  Of  protection  to  diligent  creditors. 

967.  Of  action  to  recover  property  mortgaged — Actions  at  law. 

968.  Of  the  mortgagor's  interest  in  the  property  before  sale. 

969.  Of  the  mortgagor's  interest  after  sale. 

970.  Of  the  interest  of  the  mortgagee  in  the  property. 

971.  Of   equitable   mortgages. 

972.  When  valid  against  existing  creditors,  etc. 

973.  Of  waiver  of  the  lien  and  of  estoppel. 

974.  Of  the  enforcement  of  foreign  mortgages. 

975.  Of  foreclosure  by  notice  and  sale. 

976.  Of  the  notice  in  such  cases. 

977.  Of  service  of  the  notice. 

978.  Of  parties  to  the  proceedings. 

979.  Of  the  sale  and  of  attorney's  fees. 

980.  Perpetuating  evidence  of  the  sale,  etc. 

981.  Of  the  validity  of  the  sale. 

982.  Of  the  power  of  sale. 

983.  Of  the  remedy,  costs,  etc. 

984.  Of  injunction  and  transfer  to  the  district  court 

985.  Of  proceedings  in  the  district  court. 

986.  Relating  to  levies  on  mortgaged  personal  property. 

987.  Of  the  sale  of  chattel   mortgage   property   which  has   been 

pledged  as  collateral. 

CHAPTER  LXI. 

OF  CONTEMPTS. 

Sec.  988.  What  acts  and  omissions  are  deemed  to  be  contempts. 

989.  Of  contempts  of  the  general  assembly. 

990.  Failure  to  answer  interrogatories,  a  contempt. 

991.  Disobedience  of  judgments  or  orders,  a  contempt. 

992.  Of  contempts  in  proceedings  auxiliary  to  execution. 

993.  Of  contempts  in  equitable  proceedings. 

994.  Of  contempts  in  violation  of  injunctions. 

995.  Of  contempts  in  habeas  corpus  proceedings. 

996.  Of  contempts  for  failure  to  obey  a  subprena, 

997.  Of  acts  which  are  not  considered  contempts. 

998.  Of  the  punishment  for  contempts. 


CONTENTS.  IX 

Bee.  999.  The  preservation  of  the  evidence. 

1000.  Of  the  trial,  pleadings,  evidence,  etc. 

1001.  Of  appeals. 

1002.  Punishment  for  contempt,  not  a  bar  to  an  indictment. 

CHAPTER  LXII. 

OF  CHANGING  THE  NAMES  OF  PERSONS. 

Sec.  1003.  Of  power  to  change  the  names  of  persons. 

1004.  Of  the  petition. 

1005.  Of  the  order. 

1006.  "When  the  change  takes  effect. 

1007.  Of  the  notice. 

CHAPTER  LXIII. 

OF  DIVORCE  ANNULLING  MARRIAGES  AND  OF  ALIMONY. 

Sec.  1008.  Of  jurisdiction  and  trial. 

1009.  Of  the  grounds  for  a  divorce  generally. 

1010.  Of  adultery. 

1011.  Of  desertion. 

1012.  Of  conviction  for  a  felony. 

1013.  Of  habitual  drunkenness. 

1014.  Of  inhuman  treatment. 

1015.  Of  condonation  and  misconduct  of  the  plaintiff. 

1016.  Of  the  petition. 

1017.  Of  cross-petition,  etc. 

1018.  Of  temporary   alimony. 

1019.  Of  attachment. 

1020.  Of  attorney's  fees. 

1021.  Of  the  custody  of  children. 

1022.  Of  allowance  of  permanent  alimony  without  divorce. 

1023.  Of  the  power  to  grant  permanent  alimony. 

1024.  When  an  allowance  of  alimony  is  proper. 

1025.  Of  allowing  specific  property. 

1026.  Of  the  lien  of  the  judgment. 

1027.  Of  setting  aside  the  decree  and  of  its  modification,  etc. 

1028.  Of  the  causes  for  annulling  marriages. 

1029.  Of  the  petition,  etc. 

1030.  Of  the  legitimacy  of  children,  etc. 

CHAPTER  LXIV. 

OF  HABEAS   CORPUS. 

Sec.  1031.  When  the  writ  lies. 

1032.  When  it  does  not  lie. 

1033.  Of  the  petition. 

1034.  Of  the  application  for  the  writ. 

1035.  Of  the  issuance  of  the  writ. 


X  COXTEXTS. 

Sec.  1036.  Of  notice  to  the  county  attorney. 

1037.  Of  service  of  the  writ. 

1038.  Of  disobedience  of  the   writ. 

1039.  Duties  of  the  officer. 

1040.  Of  the  precept  and  when  it  will  issue. 

1041.  How  the   precept   is   served. 

1042.  Presumptions — Appearance  of  the  parties. 

1043.  Of  contempt  and  attachment. 

1044.  Of  commitment  for  failure  to  comply  with  the  writ. 

1045.  Of  the  service  of  the  attachment. 

1046.  Of  the  answer  to  the  writ. 

1047.  Of  pleas  to  the  answer. 

1048.  Of  the  trial  and  judgment. 

1049.  Of  proceedings  by  habeas  corpus  for  the  custody  of  children. 

1050.  Of  disobedience  of  an  order  of  discharge — Filing  of  papers. 

CHAPTER  LXV. 

OF  THE  HOMESTEAD. 

Sec.  1051.  When  the  homestead  is  exempt. 

1052.  When  it  is  not  exempt. 

1053.  Same — Of  debts  contracted  prior  to  its  purchase. 

1054.  When  sold  for  debts  created  by  written  contract. 

1055.  Of   the   head    of   the   family. 

1056.  Of  conveyance,  incumbrance,  *ndgments,  etc. 

1057.  Of  the  extent  of  the  homestead. 

1058.  Same — Of  several  lots. 

1059.  Same — What  it   embraces. 

1060.  Of  selecting  and  platting  the  homestead. 
.  1061.  Of  changing  the  limits  of  the  homestead. 

1062.  Of  pleading   and   practice. 

1063.  Of  dispute  as  to  what  constitutes  the  homestead — How  de- 

termined. 

1064.  Of  the  action  of  the  court,  etc. 

1065.  Of  the  occupation  of  the  homestead  by  the  survivor,  etc. 

1066.  Of  the  election  to  hold  the  homestead  in  lieu  of  dower. 

1067.  Of  the  disposal  of  the  homestead. 

1068.  Of  sale  or  devise  of  the  homestead. 

1069.  Of  abandonment  of  the  homestead. 

CHAPTER  LXVI. 

OF  INJUNCTIONS. 

Sec.  1070.  Object  and  purpose  of  injunctions. 

1071.  Granted  to  abate  nuisance  relating  to  manufacture  and  sale 

of  intoxicating  liquors. 

1072.  How  actions  to  enjoin  nuisances  relating  to  manufacture  and 

sale  of  intoxicating  liquors  should  be  brought. 

1073.  Of  the  application  in  such  actions. 


CONTENTS.  XI 

Sec.  1074.  When  an  injunction  will  be  granted  generally. 

1075.  When   an  injunction  will  be  refused. 

1076.  Of  parties  to  the  action.- 

1077.  How  and  at  what  time  it  may  be  granted. 

1078.  Same. 

1079.  Rules  governing  the  granting  of  injunctions — Powers  of  the 

court. 

1080.  By  whom  and  when  a  temporary  injunction  may  be  granted. 

1081.  When  not  granted  without  notice. 

1082.  Form  and  requisites  of  the  petition. 

1083.  Of  the  allowance  of  the  writ. 

1084.  Of  the  bond. 

1085.  Of  actions  on  injunction  bonds. 

1086.  Issuance  of  the  writ. 

1087.  Of  vacation  and  modification  of  the  injunction. 

1088.  Of  dissolution  of  the  injunction. 

1089.  Relating   to  pleading   and   practice. 

1090.  Violation  of  injunction — How  punished. 

1091.  Of  amendments. 

CHAPTER  LXVII. 

OF  LANDLORD  AND  TENANT. 

Sec.  1092.    To  what  the  lien  of  landlord  attaches. 

1093.  When  he  has  no  lien. 

1094.  Concerning  the  priority  of  the  lien. 

1095.  When  the  lien  attaches,  and  its  continuance. 

1096.  Of  waiver  or  loss  of  the  lien. 

1097.  Of  injunctions  against  tenants. 

1098.  Of  proceedings  against  third  persons  to  recover  for  property 

sold  them  by  tenant,  and  of  actions  for  injuries  to  the  crop. 

1099.  Cases  in  which  the  landlord  may  assert  his  lien. 

1100.  Of  the  remedy. 

1101.  Of  payments  by  the  mortgagee  of  rent. 

1102.  Of  enforcement  of  the  lien. 

1103.  Of  the  petition. 

1104.  Of  the  attachment. 

1105.  Of  the  levy  of  the  writ. 

1106.  Of  pleading,  etc. 

CHAPTER  LXVIII. 

OF  MANDAMUS. 

Sec.  1107.  Object  and  purpose  of  the  ord«r. 

1108.  By  whom  issued. 

1109.  Will  not  issue  to  control  discretion. 

1110.  When  the  order  will  be  issued. 

1111.  When  the  order  will  be  refused. 

1112.  On  whose  petition  granted. 


xii  CONTENTS. 

Sec.  1113.  When  action  for  may  be  joined  with  other  causes  of  action. 

1114.  Of  the  petition. 

1115.  Of  practice. 

1116.  Of  the  order. 

1117.  Of  power  of  the  court. 

CHAPTER  LXIX. 

OF  MECHANIC'S  LIENS  AND  CLAIMS. 

Sec.  1118.    Of  claims  of  sub-contractors  of  public  buildings   and   im- 
provements. 

1119.  Same — Manner  of  making  claim. 

1120.  Same — Adjudication  of  claim — Release  of — Filing  prevented, 

how. 

1121.  Of  liens  for  opening,  developing  and  operating  coal  mines. 

1122.  Who  may  have  a  mechanic's  lien. 

1123.  When  no  lien  allowed  because  collateral  security  is  taken. 

1124.  Other  cases  in  which  the  right  to  a  lien  is  denied. 

1125.  Of  the  contract. 

1126.  Of  liens  on  the  wife's  property  by  virtue  of  contracts  made 

with  the  husband. 

1127.  Extent  of  the  lien  generally. 

1128.  Of  priority  of  the  lien. 

1129.  When  the  lien  attaches — Its  continuance. 

1130.  Of  preserving  the  lien. 

1131.  Of  the  duties  of  the  clerk. 

1132.  By  whom  and  in  what  court  liens  may  be  enforced. 

1133.  Who  made  defendants. 

1134.  When  lien  will  be  forfeited. 

1135.  Of   pleadings,  practice,    etc. 

1136.  Of  satisfaction  of  the  lien. 

1137.  Of  the  petition. 

1138.  Of  judgment. 

1139.  Of  limitation  of  actions. 

1140.  Of  sub-contractors — Who  are. 

1141.  Of  the  sub-contractor's  lien — How  preserved  and  how  dis- 

charged. 

1142.  Of  payments  made  by  the  owner  to  the  contractor  within 

the  thirty  days,  etc. 

1143.  Extent  of  lien   of  sub-contractor — When   claim   filed   after 

thirty  days. 

CHAPTER  LXX. 

OF  REAL  ESTATE  MORTGAGES. 

Sec.  1144.    How  and  where  foreclosed. 

1145.  Of  parties. 

1146.  Of  election — When  separate  actions  are  brought  upon  note 

and  mortgage. 

1147.  Of  the  petition. 


CONTENTS.  Xlll 

Sec.  1148.  Of  the  judgment. 

1149.  Of  attorney's  fees. 

1150.  Of  the  execution. 

1151.  Of  assignment  to  junior  incumbrancers. 

1152.  Of  the  surplus  arising  from  the  sale. 

1153.  Of  other  liens. 

1154.  Of  the  sale,  and  of  satisfaction  of  the  mortgage. 

1155.  Of  the  duty  of  the  clerk. 

1156.  Of  foreclosure  of  title  bonds. 

1157.  Of  the  cancelation  of  real  estate  contracts. 

1158.  Of  pleadings,  practice,  etc. 

1159.  Of  redemption. 

1160.  Of  priority  of  liens,  intervening  equities,  indexing,  etc. 

1161.  Of  release  and  merger. 

CHAPTER  LXXI. 

OF  MOTIONS  AND  ORDERS. 

Sec.  1162.  Of  the  form  and  requisites  of  motions,  etc. 

1163.  Of  notice  of  motions. 

1164.  Of  service   and   return  of  notice. 

1165.  Of  the  hearing. 

1166.  Of  orders. 

CHAPTER  LXXII. 

OP  NUISANCE. 

Sec.  1167.  Definition  of  nuisance. 

1168.  Of  the  action  and  when  it  will  lie. 

1169.  When  the  action  will  not  lie. 

1170.  Of  the  petition. 

1171.  Of  the  abatement  of  nuisances  by  parties  injured  thereby. 

1172.  Power  of  municipal  corporations  to  determine  what  consti- 

tutes a  nuisance. 

1173.  Of  practice. 

1174.  Of  the  order  of  abatement. 

CHAPTER  LXXIII. 

OP  PARTITION. 

Sec.  1175.  Of  voluntary  partition. 

1176.  Of  partition  by  suit. 

1177.  Of  parties  to  the  action. 

1178.  When  partition  is  not  the  proper  remedy. 

1179.  Of  partition  of  water  power,  mills,  machinery,  dams,  etc. 

1180.  Of  the  interest  of  the  widow,  and  of  the  homestead. 

1181.  Of  partition  of  land  owned  by  a  firm. 

1182.  Of  notice. 

1183.  Of  the  petition  and  what  it  must  contain. 

1184.  Of  the  answer. 


Xiv  CONTENTS. 

Sec.  1185.  Of  minors. 

1186.  Of  disclaimer. 

1187.  Of  practice. 

1188.  Of   incumbrances. 

1189.  Of  judgment. 

1190.  Of  the  appointment  of  referees. 

1191.  Of  directions  to  referees. 

1192.  Of  the  qualification  of  referees. 

1193.  When  referees  need  not  be  appointed. 

1194.  Of  duties  of  referees  where  partition  of  the  property  is  made. 

1195.  Of  the  report  of  referees  of  partition. 

1196.  When  the  report  will  be  set  aside. 

1197.  Of  confirmation  of  the  report. 

1198.  Of  bond  of  referees  where  a  sale  is  made. 

1199.  Of  notice  of  sale. 

1200.  Of  the  report  of  sale  by  referees. 

1201.  When  the  sale  may  be  set  aside. 

1202.  Of  confirming  the  sale,  and  of  the  conveyance. 

1203.  Effect   of   such   conveyance. 

1204.  Of  investing  proceeds  of  sale. 

1205.  Of  costs  and  attorney's  fees. 

1206.  Of  appeals. 

1207.  Of  the  record. 

CHAPTER  LXXIV. 

OF  PRESUMPTION  OF  REGULARITY  OF  PROCEEDINGS  OF  OFFI- 
CERS AND  COURTS  OF  INFERIOR  JURISDICTION. 

Sec.  1208.    When  proceedings  of  officers  and  courts  presumed  regular. 
CHAPTER  LXXV. 

OF  PROCEEDINGS  TO   REVERSE.  VACATE   AND   MODIFY   JUDG- 
MENTS, OR  THE  PROCEEDINGS  OF  BOARDS  OR  IN- 
DIVIDUALS ACTING  JUDICIALLY. 

Sec.  1209.     When  judgments  will  be  modified  or  vacated. 

1210.  Same — In  case  of  mistake,  neglect  or  omission  of  the  clerk, 

etc. 

1211.  Same — For  fraud,  etc. 

1212.  Same — For  erroneous  proceedings  against  a  minor  or  person 

of  unsound  mind. 

1213.  Same — For  the  death  of  one  of  the  parties  before  the  judg- 

ment is  rendered. 

1214.  Same — For  unavoidable  casualty  or  misfortune,  etc. 

1215.  Same — For  error  in  a  judgment  shown  by  a  minor,  etc. 

1216.  Of  equitable  proceedings. 

1217.  When  the  application  may  be  by  motion. 

1218.  When  the  application  must  be  by  petition. 

1219.  Same — When  grounds  discovered  after  term. 


CONTENTS.  XV 

Sec.  1220.  Of  pleading,  practice,  etc. 

1221.  When  the  judgment  will  be  vacated. 

1222.  Of  injunction  to  suspend  proceedings. 

1223.  Of  judgment. 

CHAPTER  LXXVI. 

OF  QUO  WARRANTO. 

Sec.  1224.  Object  and  purpose  of  the  writ. 

1225.  When  the  action  will  lie. 

1226.  When  it  will  not  lie. 

1227.  Of  the  commencement  and  prosecution  of  the  action. 

1228.  Of  pleading  and  practice. 

1229.  Of  the  petition. 

1230.  Of  the  trial  and  judgment 

1231.  Of  the  power  of  the  court. 

CHAPTER  LXXVII. 

OF  RECEIVERS. 

Sec.  1232.  An  executive  officer. 

1233.  When  power  should  be  exercised. 

1234.  Appointed  in  any  civil  action. 

1235.  Not  appointed  for  benefit  of  strangers. 

1236.  Of  the  application. 

1237.  Of  notice  of  the  application. 

1238.  Of  the  petition. 

1239.  In  cases  of  partnerships. 

1240.  In  cases  of  mortgaged  property. 

1241.  In  cases  of  corporations. 

1242.  Rights  of  third  parties  protected. 

1243.  His  qualifications. 

1244.  His    powers   and   duties. 

1245.  His  liability. 

1246.  His  compensation. 

1247.  He  can  not  be  garnished. 

1248.  Of  appeal. 

CHAPTER  LXXVIII. 

OF  REDEMPTION. 

Sec.  1249.  What  property  is  subject  to  redemption. 

1250.  Of  the  certificate  of  sale. 

1251.  Of  redemption  made  by  the  defendant. 

1252.  When  redemption  may  be  made  by  creditors. 

1253.  Who  is  a  creditor  under  the  statute. 

1254.  Of  redemption  by  holder  of  mechanic's  lien. 

1255.  Of  redemption  in  equity. 

1256.  What  law  is  applicable  to  the  sale. 

1257.  Of  creditors  redeeming  from  each  other. 


XVI  CONTENTS. 

Sec.  1258.  Of  computing  the  time  of  redemptioa 

1259.  Of  the  terms  of  redemption. 

1260.  Same. 

1261.  Who  obtains  the  property. 

1262.  Of  the  mode  of  redemption. 

1263.  Of  settling  controversies  as  to  the  right  to  redeem  or  as  to 

the  amount  to  be  paid. 

1264.  Of  redemption  from  sale  in  parcels,  and  of  the  interest  of 

tenants  in  common. 

1265.  Of   the   rights   of  the   purchaser. 

1266.  Of  assigning  the  right  to  redeem. 

1267.  Of  the  sheriff's  deed. 

1268.  When  the  deed  is  constructive  notice. 

1269.  Of  the  sheriff's  return. 

1270.  Of  damages  for  injury  to  property,  etc. 

CHAPTER  LXXIX. 

OF  REVIVOR  OP  JUDGMENTS. 

Sec.  1271.  When  judgments  will  be  revived. 

1272.  Of  the  sheriff's  duty. 

1273.  Of  the  affidavit. 

1274.  Of  execution  against  surviving  defendants. 

1275.  When  execution  may  be  quashed. 

1276.  Of  proceedings  when  all  the  defendants  are  dead. 

CHAPTER  LXXX. 

OF  SHERIFF'S  SALE. 

Sec.  1277.  Of  the  notice  of  the  sale. 

1278.  Of  selling  without  notice. 

1279.  Of  the  time  and  manner  of  sale. 

1280.  Of  postponing  the  sale. 

1281.  Of  the  surplus  arising  from  the  sale. 

'    1282.  Of  proceedings  when  property  is  unsold,  etc. 

1283.  Effect  of  sale  without  notice  to  the  defendant. 

1284.  Of  plan  of  sale  by  defendant. 

1285.  When  sales  will  be  set  aside. 

1286.  When  sales  will  not   be   set  aside. 

1287.  Sales  must  be  set  aside  when  purchaser  fails  to  pay. 

1288.  Sales  set  aside  when  defendant  has  no  title,  etc. 

1289.  Of  the  rule  of  caveat  emptor. 

1290.  Of  the  disposition  of  money  and  choses  in  action. 

1291.  Of  satisfying  judgment  against  an  executor,  or  decedenS. 

1292.  Of  setting  off  mutual  judgments. 

1293.  Of  sale  of  leasehold  interest,  etc. 

1294.  Of  the  appraisement  of  personal  property. 

1295.  Of  the  sheriff's  return. 

1296.  Of  the  rights  of  the  purchaser,  and  who  may  purchase. 

1297.  Of  the  return  of  the  purchase  money,  canceling  satisfaction, 

etc. 


CONTENTS.  XV11 

CHAPTER  LXXXI. 

OF  SUMMARY  PROCEEDINGS. 

Sec.  1298.  When  allowed. 

1299.  Of  the  form  of  proceedings. 

1300.  Of  notice. 

1301.  Of  the  hearing. 

CHAPTER  LXXXII. 

OF  TRESPASS. 

Sec.  1302.  What  is  trespass. 

1303.  When  the  action  will  lie. 

1304.  Who  may  maintain  the  action. 

1305.  When  the  action  will  not  lie. 

1306.  Of  the  petition. 

1307.  Of  practice. 

CHAPTER  LXXXIII. 

OF  WASTE. 
Sec.  1308.    Waste  defined. 

1309.  Of  the  commission  of  waste. 

1310.  Of  the  judgment. 

1311.  When  a  person  will  be  deemed  to  have  committed  waste. 

1312.  Of  the  petition. 

CHAPTER  LXXXIV. 

OF  APPELLATE  PROCEEDINGS. 

Sec.  1313.  Of  time  of  taking  an  appeal. 

1314.  When  an  appeal  lies. 

1315.  When   an   appeal   will   not   lie. 

1316.  What  will  amount  to  a  waiver  of  the  right  to  appeal. 

1317.  Of  the  amount  in  controversy — How  determined. 

1318.  Of  the  form  and  requisites  of  the  certificate. 

1319.  Of  the  time  of  making  the  certificate,  etc. 

1320.  Of  questions  involving  an  interest  in  real  estate. 

1321.  Of  notice  of  appeal. 

1322.  Of  service  of  the  notice — Perfecting  the  appeal. 

1323.  Of  filing  the  notice — Waiving  irregularities,  etc. 

1324.  Of  the  supersedeas  bond. 

1325.  Of  proceedings  when  bond  is  defective — Of  the  supersedeas. 

1326.  Who  may  appeal. 

1327.  Of  the  certification  of  the  record — When  necessary  and  how 

obtained. 

1328.  Of  denials  of  the  transcript  and  the  perfection  of  the  record. 

1329.  Of  certifying  the  record  in  an  equity  case. 


XV111  CONTENTS. 

Sec.  1330.  Of  the  form  of  the  transcript. 

1331.  Of  corrections  of  the  record,  etc. 

1332.  Of  inspection  of  original  papers. 

1333.  Of  the  form  and  requisites  of  the  abstract. 

1334.  Of  the  construction  and  modification  of  rules. 

1335.  When  the  appeal  will  be  dismissed  or  the  judgment  affirmed. 
le>36.  When  the  abstract  will  be  deemed  true. 

1337.  When  the  abstract  may  be  attacked  by  motion. 

1338.  Of  the  filing  and   service  of   amended   and   additional   ab- 

stracts. 

1339.  When  the  abstract  must  contain  all  the  evidence,  or  all  the 

instructions. 

1340.  What  is  sufficient  to  show  that  the  abstract  contains  all  the 

evidence. 

1341.  Assignment  of  errors,  when  necessary. 

1342.  Of  the  sufficiency  of  the  assignment  of  errors. 

1343.  Of  service  and  filing  the  assignment  of  errors. 

1344.  Of  the  form  of  the  assignment  and  of  the  effect  of  failing  to 

argue  assignments. 

1345.  Of  the  argument. 

1346.  Of  the  duty  of  the  clerk. 

1347.  Of  motions. 

1348.  Of  affirmance  of  cases  in  the  supreme  court. 

1349.  Of  reversal  of  cases  in  the  supreme  court. 

1350.  Of  the  effect  of  judgment  in  supreme  court  and  of  remitting 

part  of  judgment,  etc. 

1351.  Of  the  effect  of  a  prior  decision  on  a  second  appeal. 

1352.  Of  proceedings  in  the  lower  court  after  a  cause  is  reversed 

and  remanded. 

1353.  Of  power  of  supreme  court  and  of  executions  therefrom — 

Restoration  of  property. 

1354.  Of  opinions  of  the  court — Rules. 

1355.  Cases  where  no  motion  for  a  new  trial  is  necessary,  etc. 

1356.  Of  the  lien  of  the  judgment  of  the  supreme  court,  etc. 

1357.  Of  the  procedendo — Of  decree,  withdrawing  papers. 

1358.  When  causes  will  be  tried  de  novo  in  the  supreme  court. 

1359.  Of  regulations  as  to  the  method  of  trial. 

1360.  What  must  appear  of  record  to  warrant  a  tr'.al  de  novo. 

1361.  Of   the  judge's  certificate  to  the  evidence,  its  requisites,  and 

when  it  must  be  filed. 

1362.  Of  the  clerk's  certificate. 

1363.  Of  the  hearing  and  determination  of  appeals  in  equitable 

actions. 

1364.  Of  questions  as  to  the  admissibility  of  evidence. 

1365.  When  the  case  will  be  remanded. 

1366.  Of  the  decree  in  a  cause  triable  de  novo. 

1367.  Of  proceedings  in  the  lower  court   in  an  equitable   action 

after  it  is  remanded. 

1368.  Questions  not  raised  in  the  court  below,  will  not  be  con- 

sidered on  appeal. 

1369.  Of  the  presumptions  which  obtain  with  reference  to  the  pro- 

ceedings of  the  court  below. 


CONTENTS.  XIX 

Sec.  1370.    Same — Where  the  evidence  is  not  all  before  the  court. 

1371.  What  is  error  without  prejudice — Generally. 

1372.  When  rulings  upon  demurrer,  or  with  reference  to  plead- 

ings will  be  without  prejudice. 

1373.  Of  error  without  prejudice  in  rulings  upon  the  evidence,  etc. 

1374.  Of  error  without  prejudice  in  the  giving  of  instructions. 

1375.  Of  the  discretion  of  the  court  below,  etc. 

1376.  Of  the  petition  for  rehearing,  when  filed. 

1377.  Of  the  argument. 

1378.  Of  the  action  of  the  court. 

CHAPTER  LXXXV. 

STATUTES  AND  RULES  REGULATING  THE  PRACTICE  IN  THE 
SUPREME  COURT. 

Sec.  1379.  Of  the  adoption  of  rules. 

1380.  Of  the  organization. 

1381.  Of  the  jurisdiction. 

1382.  Of  the  terms. 

1383.  Of  appeals. 

1384.  Of  docketing  causes. 

1385.  Of  advancing  causes. 

1386.  Of  abstracts,  transcripts  and  records. 

1387.  Of  supersedeas  bonds. 

1388.  Of  the  trial,  decision  and  execution. 

1389.  Of  motions. 

1390.  Of  briefs  and  arguments. 

1391.  Of  decisions  and  opinions. 

1392.  Of  records  and  reports. 

1393.  Of  judgments  and  decrees. 

1394.  Of  executions. 

1395.  Of  rehearings. 

1396.  Of  preparing  and  printing  abstracts,  transcripts,  briefs,  ar- 

guments and  petitions  for  rehearing. 

1397.  Of  appeals  in  criminal  actions. 

1398.  Of  the  construction  and  modification  of  the  rules. 

1399.  Of  the  distribution  of  printed  matter. 

1400.  Of  the  return  of  papers  and  exhibits. 

1401.  Of  costs. 

1402.  Of  the  admission  of  attorneys. 

CHAPTER  LXXXVI. 

OF  THE  UNWRITTEN  PRACTICE  OF  THE  SUPREME  COURT. 

Sec.  1403.  Preliminary  statement. 

1404.  Of  advancing  causes. 

1405.  Of  oral  arguments. 

1406.  Of  the  submission  of  causes. 

1407.  Of  setting  aside  submissions. 


XX  CONTENTS. 

Sec.  1408.  Of  restraining  orders. 

1409.  Of  alimony  in  divorce  proceedings. 

1410.  Of  attorney's  fees. 

1411.  Of  costs. 

CHAPTER  LXXXVII. 

OF  THE  FORCIBLE  ENTRY  AND  DETENTION  OF  REAL  PROP- 
ERTY. 

Sec.  1412.  Of  jurisdiction  of  the  action. 

1413.  When  the  action  lies. 

1414.  Parties  to  the  action. 

1415.  Of  the  notice  to  quit. 

1416.  Of  the  petition. 

1417.  Of  service  of  notice — Appearance,  etc. 

1418.  Of  trial — When  by  equitable  proceedings.. 

1419.  When  action  barred,  etc. 

1420.  Of  the  judgment. 


KINNE'S 

PLEADING  AND  PRACTICE. 


CHAPTER  XLVIII. 

OF  GARNISHMENT. 

Sec.  771.  Garnishment,  how  effected. 

772.  Of  taking  the  answer  by  the  sheriff, 

773.  When  garnishee  to  appear  in  court. 

774.  Who  may  be  garnished. 

775.  Who  can  not  be  garnished. 

776.  Of  proceedings  when  garnishee  dies. 

777.  Of  fees  and  mileage  of  the  garnishee. 

778.  Of  waiver  by  garnishee  of  his  exemption. 

779.  Penalty  for  failure  to  attend  and  answer. 

780.  Of  showing  cause  against  the  issuance  of  an  execution,  set- 

ting aside  default. 

781.  Of  the  garnishee's  liability  for  costs. 

782.  Of  the  garnishee's  exonerating  himself. 

783.  Of  the  garnishee's  liability  for  interest. 

784.  Of  the  position  of  the  garnishee  and  his  rights  generally. 

785.  Of  controverting  the  answer  of  the  garnishee  and  of  trial. 

786.  Of  notice  to  the  principal  defendant. 

787.  Of  showing  the  exemption  of  the  property,  etc. 

788.  When  judgment  will  be  rendered  against  a  garnishee. 

789.  Of  the  form  of  the  judgment. 

790.  Of  debts  due  by  negotiable  paper. 

791.  Of  conclusiveness  of  the  judgment,  appeal,  etc. 

Section  771.  Garnishment,  how  effected. —  At- 
tachment by  garnishment  creates  no  lien  on  the  property, 
but  the  remedy  is  of  a  personal  nature  against  the  garn- 
ishee.1 It  is  effected  by  informing  the  supposed  debtor, 

i  Moore  v.  Walker,  46-164;    McConnell  v.  Denham,  72-494. 

1 

Vol.  II-l 


2  GARNISHMENT.  [§  771. 

or  person  holding  the  property,  that  he  is  attached  as 
garnishee,  and  by  serving  him  with  an  original  notice  in 
the  manner  provided  for  in  civil  actions,  forbidding  his 
paying  any  debt  due  by  him  to  the  defendant,  or  there- 
after to  become  due,  and  requiring  him  to  retain  posses- 
sion of  all  property  of  the  defendant,  then  or  thereafter 
being  in  his  custody  or  under  his  control,  in  order  that 
the  same  may  be  dealt  with  according  to  law;  and  the 
sheriff  must  summon  such  persons  as  garnishees  as  the 
plaintiff  may  direct.  And  unless  three  answers  are  re- 
quired to  be  taken  they  must  be  cited  to  appear  on  the 
first  day  of  the  next  term.2  The  plaintiff  may  in  writ- 
ing direct  the  sheriff  to  take  the  answers  of  the  garn- 
ishees, and  attach  such  answers  to  his  return  to  the  writ,3 
Such  direction  should  be  indorsed  on  the  writ  and  may 
be  as  follows: 

FORM  OF   DIRECTION    OF   PLAINTIFF    TO    SHERIFF   TO    TAKE 
ANSWER  OF  GARNISHEE. 

The  sheriff  to  whom  the  within  writ  of  attachment  is  directed,  is 
hereby  ordered  to  take  the  answer  of  (here  name  person)  garnished 
herein  in  the  manner  provided  by  law,  and  attach  said  answer  to  his 
return  on  the  within  writ. 

Dated  the day  of ,  18—. 

,  plaintiff. 

This  notice  may  be  signed  by  the  attorney  of  the  party, 
and  it  may  also  be  written  on  a  separate  paper,  in  which 
case  it  must  be  entitled  in  the  cause  and  the  form 
changed  accordingly.  The  notice  of  garnishment  may 
be  in  the  following  form: 


FORM  OF  NOTICE  OF  GARNISHMENT. 


Title, 
Venue. 


To (here  insert  names  of  parties  garnished) :     You,  and  each 

of  you,  are  hereby  notified  that  you  are  attached  as  garnishees  in  the 
abov«  entitled  cause,  and  that  you  are  forbidden  to  pay  any  debt  due  by 
you  to  the  defendant  therein,  or  which  may  hereafter  become  due,  and 
that  you  are  required  to  retain  possession  of  all  property  of  the  said  de- 

2  Code,  Sec.  3935;    Van  Fossen  s  Code,   Sec.   3935;     Conable   v. 

v.  Anderson,  8-251.  Hylton,   10-593. 


§  772.  J  GARNISHMENT.  3 

fendant  now,  or  hereafter,  being  in  your  custody  or  under  your  control, 
in  order  that  the  same  be  dealt  with  according  to  law.  (When  the  sheriff 
has  no  direction  to  take  the  answer  the  following  must  be  added,  and 
it  may  be  when  the  answer  is  taken  if  it  is  desired  to  have  the  garnishee 
present  at  court.)  And  you  are  further  notified  to  appear  at  the  next 
term  of  said  court  on  the  first  day  thereof,  to  be  commenced  on  the 

—  day  of ,  18 — ,  at  the  court  house  in  said  county,  then  and 

there  to  answer  such  interrogatories  as  may  be  propounded  to  you,  or 
you  will  be  liable  to  pay  the  entire  judgment  which  the  said  plaintiff 
has  obtained,  or  eventually  obtains,  against  said  defendant. 

,  sheriff  of county,  Iowa. 

§  772.  Of  taking  the  answer  by  the  sheriff. — When 
the  sheriff  is  directed  to  take  the  answer  of  the  garnishee 
he  must  first  administer  to  him  the  following  oath:4 

FORM  OF   OATH  ADMINISTERED  BY  SHERIFF  TO  GARNISHEE. 

You  do  solemnly  swear  (or  affirm)   that  in  the  case  of  v. 

,  in  which  you  are  attached  as  garnishee,  you  will  true  answers 


make  to  the  questions  propounded  to  you  as  such  garnishee,  so  help  you 
God. 

The  deputy  sheriff  has  the  same  power  as  the  sheriff  to 
administer  the  oath  and  take  the  answers.5  After  the 
oath  is  administered  the  officer  must  propound  the  fol- 
lowing questions  in  writing,  and  write  the  answer  to 
each  thereunder.6 

FORM  OF  QUESTIONS  TO  BE  PROPOUNDED  TO  GARNISHEE. 

1.  Are  you  in  any  manner  indebted  to  the  defendant  in  this  suit,  or 
do  you  owe  him  money,  or  property,  which  is  not  yet  due?  if  so,  state  the 
particulars. 

Answer   (here  insert  answer). 

2.  Have  you  in  your  possession  or  under  your  control,  any  prop- 
erty, rights  or  credits  of  the  said  defendant?  if  so,  what  is  the  value  of 
the  same,  and  state  all  the  particulars. 

Answer   (here  insert  answer). 

3.  Do  you  know  of  any  debts  owing  to  the  said  defendant,  whether 
due  or  not  due,  or  any  property,  rights  or  credits  belonging  to  him  and 
now  in  the  possession  or  under  the  control  of  others?  if  so,  state  the 
particulars. 

Answer   (here  insert  answer). 

*  Code,  Sec.  3935.  e  Code,  Sec.  3939. 

e  Code,  Sees.  499,  510 


4  GARNISHMENT.  [§  773. 

(After  the  answers  are  written  out  they  should  be  signed  and  sub- 
scribed as  shown  below.) 

I  do  solemnly  swear  that  I  have  made  full  and  true  answers  to  the 
above  questions,  touching  the  matter  wherein  I  have  been  attached  as 
garnishee,  so  help  me  God. 

Subscribed  and  sworn  to  before  me,  and  in  my  presence  by , 

this  day  of ,  18—. 

,  sheriff  of county,  Iowa. 

The  notice  of  garnishment,  and  questions  and  answers 
of  the  garnishee  should  be  properly  marked  as  exhibits 
and  attached  to  and  made  a  part  of  the  officer's  return 
to  the  writ7 

§  773.  When  garnishee  to  appear  at  court. — If  the 
garnishee  refuses  to  answer  fully  and  unequivocally,  all 
the  foregoing  interrogatories,  he  must  be  notified  and  re- 
quired to  appear  and  answer  on  the  first  day  of  the  next 
term  of  court,  and  he  may  be  so  required  in  any  event  if 
the  plaintiff  notify  him  to  that  effect.8  The  sheriff  can 
not  garnish  a  party  nor  take  his  answer  without  having 
a  writ  of  attachment.9  It  is  competent  for  a  corporation 
aggregate  to  answer  in  writing,  or  through  some  officer 
or  agent  authorized  to  do  so  and  cognizant  of  the  facts.10 
It  is  held  that  if  the  notice  be  served  on  the  garnishee  it 
is  valid  although  it  does  not  require  him  to  appear  on 
the  first  day  of  the  next  term  to  answer.11  The  garnish- 
ment process  may  be  served  before  service  of  the  notice 
of  the  commencement  of  the  action.12  The  questions 
propounded  to  the  garnishee  in  court  may  be  the  same 
as  those  the  sheriff  is  required  to  ask,  or  any  others  the 
court  may  deem  right  and  proper.13  And  it  is  within  the 
discretion  of  the  court  to  require  that  the  questions  to 
be  propounded  to  the  garnishee  be  written  out  and  sub- 
mitted to  the  court  before  being  answered.14  A  wife 

7  Code,  Sec.  3939.  10  Bailey  v.  U.  P.  R.  Co.,  62-354. 

s  Code,  Sees.  3935,  3940;  Thomp-  n  Gilmor  v.  Cohn,  71  N.  W.,  244. 

son  v.  Silvers,  59-670;  Westphal  v.  12  Phillips  v.  Germon,  43-101. 

Clark,  42-371;  Parmenter  v.  Childs,  is  Code,    Sec.    3941;     Walker   v. 

12-22;    Allison  v.  C.,  B.  &  Q.  R.  Co.,  Irwin.  62  N.  W.,  785. 

76-209.  14  Elwood  v.  Crowley,  64-68. 

9  Van   Fossen  v.   Anderson,   8- 
251. 


§  774.]  GARNISHMENT.  5 

garnished  as  a  debtor  of  her  husband,  is  not  exempt  from 
answering  questions  touching  such  indebtedness,  on  the 
ground  that  such  answers  would  be  testimony  against 
her  husband,  as  it  could  not  be  regarded  as  against  her 
husband's  interest  that  his  property  should  be  subjected 
to  the  payment  of  his  debts.15  The  garnishee  may  be 
asked  any  questions  tending  to  reveal  the  true  character 
and  consideration  of  the  transaction.16  He  may  make 
special  answer  for  his  own  benefit,  and  is  not  obliged  to 
assume  the  responsibility  of  a  categorical  answer  to  the 
general  questions,  but  may  explain  the  circumstances  in 
which  he  stands.17  And  he  has  the  right  to  have  the  cor- 
rectness of  an  interrogatory  adjudicated  by  the  court, 
and  is  not  bound  to  submit  to  any  and  every  conceivable 
question  without  objection,  or  if  he  objects,  become  liable 
to  pay  the  entire  debt  of  the  principal  action,  in  case  his 
objection  shall  prove  to  be  unfounded.18  When  the 
garnishee  appears  in  pursuance  of  notice,  the  court  will 
appoint  a  commissioner  to  take  his  answer  on  the  oral 
motion  of  the  plaintiff,  his  attorney  or  the  garnishee.19 
The  creditor  has  a  right  to  examine  the  garnishee  per- 
sonally, and  a  sworn  answer  of  a  garnishee  may  be 
stricken  from  the  files.20 

§  774.  Who  may  be  garnished. — A  sheriff  or  con- 
stable may  be  garnished  for  money  of  the  defendant  in 
his  hands.21  So  also  may  a  judgment  debtor  of  the  de- 
fendant, when  the  judgment  has  not  been  previously  as- 
signed on  the  record,  or  by  writing  filed  in  the  office  of 
the  clerk,  and  by  him  minuted  as  an  assignment  on  the 
margin  of  the  judgment  docket.  An  executor  may  be 
garnished  for  money  due  from  the  decedent  to  the  de- 
fendant.22 So  also  a  fund  in  court  may  be  garnished  by 
leaving  with  the  clerk  of  the  court  a  copy  of  the  writ  of 

is  Thompson  v.  Silvers,  59-670.  21  Code,  Sec.  3936;    Patterson  v. 

i«Bebb  v.  Preston,  1-460.  Pratt,  19-358;     Reifsnyder  v.  Lee, 

"Bebb  v.  Preston,  3-325;    Same,  44-101;     Com.  Ex.  Bk.  v.  McT.eod, 

1-460.  65-665;  Hoffman  v.  Wetherell,  42- 

is  Sawyer  v.  Webb,  5-315.  89;    Minthorn  v.  Hemphill,  73-257. 

i»  Thomas  v.  Hoffman,  62-125.  22  Code,  Sec.  3936;    see  Clark  v. 

20  Penn  v.  Phelan,  52-535.  Shrader,  41-491. 


6  GARNISHMENT.  [.§  774. 

attachment,  with  a  notice  that  he  is  attached,  specifying 
the  fund.23  All  private  corporations  may  be  garnished.24 
A  notice  of  garnishment  directed  to  and  served  on  one 
member  of  a  partnership  will  not  hold  a  debt  due  by  the 
firm  to  the  defendant,  but  it  will  support  a  judgment 
against  the  firm  as  garnishees  when  it  is  directed  to  the 
firm,  and  served  on  a  member  who  answers  in  behalf  of 
the  firm.25 

A  trustee  can  be  garnished,  and  the  surplus  money 
arising  from  the  sale  under  a  trust  deed  held,  and  such 
surplus  applied  to  satisfy  the  debt  of  the  person  entitled 
thereto.26  An  agent  may  be  garnished  and  a  fund  in 
his  hands  held.27  A  mortgagee  in  possession  of  chattels 
may  be  garnished,  and  required  to  answer  as  to  the 
amount  of  his  claim  yet  unpaid,  the  amount  and  value 
of  the  property,  and  may  be  held  responsible  for  the  sale 
and  disposition  of  the  mortgaged  property  over  and 
above  the  payment  of  his  own  claim.28  But  a  mortgagee 
of  personal  property  not  in  his  possession,  can  not  be 
garnished.29  The  guests  of  an  inn-keeper  may  be  garn- 
ished in  an  action  by  a  creditor  against  the  inn-keeper 
but  if  the  inn-keeper  requires  the  guests  to  pay,  or  pledge 
payment  in  advance,  no  indebtedness  arises  that  is  the 
subject  of  garnishment,  and  this  is  so,  though  prior  to 
such  advanced  payment  or  pledge,  the  guests  may  have 
been  served  with  process  of  garnishment;  such  a  garn- 
ishment would  only  hold  the  amount  due  in  the  ordinary- 
way  from  the  guests.30  Money  belonging  to  a  principal, 
deposited  by  an  agent  in  a  bank  as  his  agent,  can  not 
be  garnished  by  creditors  of  the  agent.31  Where  mort- 
gaged chattels  have  been  seized  by  an  officer  to  be  sold 

23  Code,  Sec.  3937;    Patterson  v.  28  Torbet     v.     Hayden,     11-435; 

Pratt,   19-358.  Campbell      v.      Leonard,      11-489; 

z*  Taylor  v.  B.  &  M.  R.  R.  Co.,  Downer      v.       Garretson,     24-351; 
5-114;    Wales  v.  Muscatine,  4-302;  Fountain  v.  Smith,  70-282;  Brain- 
Burton  v.  Dist.  Twp.,  11-166;   Bu-  ard  v.  Van  Kuren,  22-261;    Davis  v. 
chanan  County  Bk.  v.  C.,  R.  I.  F.  Wilson,  52-187. 
&  N.  W.  R.  Co.,  62-494.  29  Curtis     v.      Raymond.    29-52; 

25  Bean  v.  Barney,  10-498.  First  Nat'l  Bk.  v.  Perry,  29-266. 

28  Cook  v.  Dillon,  9-407.  30  Caldwell  v.  Stewart,  30-379. 

27  First  Nat'l  Bk.  v.  D.  &  St.  P.  31  DCS  Moines  Cotton  Mill  Co.  v. 

R.  Co.,  45-120.  Cooper,  61  N.  W.,  1084. 


§  775.]  GAKNTSHMENT.  7 

under  the  mortgage,  the  balance  of  the  proceeds,  after 
satisfying  the  mortgage,  is  the  property  of  the  mort- 
gagor, and  subject  to  garnishment  in  the  sheriff's 
hands.32  But  the  garnishment  of  a  judgment  debtor 
does  not  affect  the  rights  of  claimants,  but  simply  the  lia- 
bility of  the  garnishee.33  •  Ordinarily,  one  indebted  to,  or 
having  property  of  another,  may  be  garnished.34  The 
landlord's  interest  in  growing  crops  can  be  reached  only 
by  garnishment  of  the  tenant.35  A  garnishment  will  be 
valid  as  against  a  fund  of  which  the  garnishee  is  the 
equitable  custodian.36  A  party  who  it  is  claimed  has 
fraudulently  purchased  property  may  be  garnished  by 
the  creditor  of  the  vendor.37  And  a  mortgagee  who  it 
is  claimed  fraudulently  took  his  mortgage  may  be  garn- 
ished by  a  creditor  of  the  mortgagor.38 

§  775,  Who  can  not  be  garnished. —  A  municipal 
or  political  corporation  can  not  be  garnished,  and  this 
rule  is  universal  in  its  application,  and  the  objection  may 
be  made  at  the  time  or  before  filing  answer.39  Prior  to 
the  revision  of  1860,  a  municipal  corporation  could  be 
garnished,  but  if  it  was  exempt,  it  was  a  privilege  which 
it  alone  could  assert;  it  could  not  be  interposed  by  the 
debtor.40  A  receiver  can  not  be  garnished;  property  in 
his  hands,  being  in  custody  of  the  law,  can  only  be 
reached  by  proper  petition  to  the  court.41  The  holders 
of  certain  notes  and  accounts,  assigned  to  them  for  col- 
lection, and  the  proceeds  to  be  applied  on  certain  speci- 
fied debts  of  the  assignor,  were  held  not  subject  to  garn- 
ishment by  other  creditors  of  the  assignor.42  A  county 

32  Hoffman  v.  Wetherell,  42-89.  so  Code,    Sec.    3936;      Jenks     v. 

33  Howe  v.  Jones,  57-130.  Osceola,  45-554;    Clapp  v.  Walker, 
34Kesler     v.   St.   John,    22-565;      25-315;    Caldwell    v.    Stewart,    30- 

Nat'l  Bk.,  etc.,  v.   Chase,   71-120;  379. 

see  Deere  v.  Young,  39-588.  *<>  Clapp  v.  Walker,  25-315;  Bur- 

ss  Howard   County  v.   Kyte,   69-  ton  v.  Dist.  Twp.,  11-166;  Wales  v. 

307.  Muscatine,  4-302. 

36  Des  Moines  County  v.   Hink-  41  Martin  v.  Davis,  21-535;    Mc- 
ley,  62-637.  Gowan  v.  Myers,  66-99. 

37  G-oll  &  Frank  Co.  v.  Miller,  87-  42  Van  Winkle  v.  I.  I.  &  S.  F.  Co., 
426;    Liddle  v.  Allen,  90-738.  56-245. 

ss  Citizens  State  Bk.  v.  Council 
Bluffs  Fuel  Co.,  89-618. 


8  GARNISHMENT.  [§    775 

can  not  be  garnished.43  A  judgment  defendant  in  an 
action  in  the  district  court  can  not  be  attached  as  garn- 
ishee,  and  subject  to  a  judgment  in  a  garnishment  pro- 
ceeding in  the  circuit  court.44  The  preference  which  the 
law  gives  the  creditors  of  a  partnership  to  be  first  satis- 
fied out  of  the  firm  property,  will  be  protected  in  pro- 
ceedings by  garnishment  by  firm  and  individual  cred- 
itors.45 Real  estate  of  a  debtor,  the  title  to  which  is  in 
another  person,  can  not  be  reached  by  garnishment.46 
Personal  property  under  the  control  of  the  garnishee  but 
situated  out  of  the  State  where  the  action  was  brought 
can  not  be  reached  by  this  process.47  Nor  can  the  court  in 
a  garnishment  proceeding  against  a  non-resident  acquire 
such  jurisdiction  over  him  while  he  is  temporarily  in  the 
State,  as  to  reach  indebtedness  which  is  not  in  any  way 
connected  with  an  office  or  agency  of  the  garnishee  in 
this  State.48  Where  a  mortgage  authorized  the  appoint- 
ment of  a  receiver  the  rents  accruing  after  his  appoint- 
ment are  not  subject,  to  garnishment  by  other  creditors.4" 
An  action  will  lie  against  one  who  maliciously  and  with- 
out probable  cause  garnishes  the  exempt  earnings  of  his 
debtor,  knowing  them  to  be  exempt,  with  the  purpose  of 
harassing  the  latter's  employers,  and  thereby  compelling 
him  to  pay  the  debt  out  of  such  exempt  money  in  order  to 
avoid  discharge.50  The  fact  that  plaintiff  stipulates  to 
dismiss  an  action  on  payment  by  the  defendant  of  a  cer- 
tain sum  to  other  persons,  does  not,  in  the  absence  of 
fraud,  render  such  money  subject  to  garnishment  by  his 
creditors.51  A  notice  of  garnishment  directed  to  the 
mayor,  recorder  and  treasurer  of  an  incorporated  city,  by 
their  individual  names  and  name  of  office,  respectively, 
informing  them  that  they,  and  each  of  them,  were  "at- 

43  County  of  Des  Moines  v.  Hink-  47  Montrose  Pickle  Co.  v.  Dodson 
ley,  62-637.  &  Hills  Mfg.  Co.,  76-172. 

44  McGuire  v.  Pitts,  42-535.  4s  German   Bk.   v.    American   F. 

45  Switzer  v.  Smith,  35-269;    see  Ins.  Co.,  83-491. 

Harlan  v.  Moriarty,  2  G.  Gr.,  486;  49  Stetson  v.  Nor.  Inv.  Co.,  70  N. 
Robinson  v.  Moriarty,  2  G.  Gr.,  W.,  595. 

497.  BO  Nix  v.  Goodhile,  63  N.  W.,  701. 

«  Baxter  v.  Myers,  85-328.  si  Phillips  v.  Van  Horn,  68  N.  W., 

452. 


§§776,777.]  GAENISHMENT.  9 

tarhejd  and  held  as  garnishees  as  a  debtor  and  a  person 
holding  property  of  the  defendant,  did  not  give  the 
court  jurisdiction  of  the  city  as  garnishee.52 

Where,  by  the  terms  of  a  policy  of  fire  insurance,  the 
same  became  forfeited  and  void,  the  company  was  not 
liable  to  be  garnished  as  a  debtor  of  the  policy  holder, 
there  being  no  legal  indebtedness  on  the  part  of  the  com- 
pany.53 A  judgment  for  damages  done  to  a  homestead 
can  not  be  garnished  to  satisfy  another  judgment  which 
is  not  a  lien  on  the  homestead.54 

And  when  a,  judgment  debtor  and  creditor  are  both 
residents  of  this  State,  and  the  creditor  seeks,  in  tht- 
courts  of  another  State,  to  subject  to  the  payment  of  his 
judgment  the  exempt  wages  of  the  debtor  due  him  from 
a  railroad  company,  doing  business  in  both  States,  he 
will  be  enjoined  from  so  proceeding  and  may  be  punished 
for  violating  such  injunction.55  Ordinarily  an  executor 
or  an  administrator  can  not  be  garnished  until  payment 
of  the  creditor's  claim  is  ordered,  or  the  estate  fully  set- 
tled and  an  order  of  distribution  made.56 

§  776.    Of  proceedings  when  garnishee  dies. — If  the 

garnishee  dies  after  he  has  been  summoned  by  garnish- 
ment, and  pending  the  litigation,  the  proceedings  may 
be  revived  by  or  against  his  heirs  or  legal  representa- 
tives.57 

§  777.  Of  fees  and  mileage  of  the  garnishee. — When 
the  garnishee  is  required  to  appear  at  court,  unless  he 
has  refused  to  answer  before  the  sheriff,  he  is  entitled 
to  the  pay  and  mileage  of  a  witness,  and  may  in  like  man- 
ner require  payment  beforehand  in  order  to  be  made 
liable  for  non-attendance.58  But  a  failure  to  pay  fees 
and  mileage  does  not  relieve  the  garnishee  from  the  ob- 

62  Clafflin  v.  Iowa  City,  12-284.  Willard  v.  Sturm,  65  N.  W.,  847. 

53  Victor  v.  Hartford  F.  Ins.  Co.,         se  Boyer     v.     Hawkins,     86-40; 
33-210;   see  McArthur  v.  Garman,  Shepherd  v.  Bridenstine,  80-225. 
71-34.  57  Code,  Sec.  3938. 

54  Mudge  v.  Lanning,  68-641;  see         58  Code,  Sec.  3942;   Westphal  v. 
Kaiser  v.  Seaton,  62-463.  Clark,  42-371;  Stockberger  v.  Lind- 

55  Teagler   v.    Landsley,    69-725;  sey,  65-471. 
Hager  v.  Adams,  70-746;   and  see 


10  GARXismiEXT.  [§§778,779,780. 

ligation  to  retain  in  his  possession  the  property  of  the 
defendant,  under  his  control,  and  to  withhold  payment 
of  any  money  due  him,  and  such  fees  and  mileage  may 
subsequently  be  paid  or  tendered  and  his  attendance  at 
court  thus  secured.59  The  power  to  compel  the  attend- 
ance of  a  garnishee  is  not  limited  to  seventy  miles  as  in 
the  case  of  witnesses.60  Where  a  garnishee,  without  de- 
manding his  fees  and  mileage,  attends  court,  he  can  not 
then  demand,  as  a  condition  to  testifying,  his  fees  and 
mileage;  whether  he  might  not,  after  appearance,  be  en- 
titled to  one  day's  attendance  before  answering,  has 
never  been  decided  by  our  supreme  court,  but  it  would 
seem  that  he  might  insist  on  such  payment.61 

§  778.  Of  waiver  by  garnishee  of  his  exemption. 
—The  objection  that  the  garnishee  is  exempt  from  the 
process  of  garnishment  is  a  privilege  which  he  alone  can 
assert,62  and  the  garnishee  may  waive  the  exemption.63 

§  779.  Penalty  for  failure  to  attend  and  answer.— 
If  the  garnishee  has  been  duly  summoned,  and  his  fees 
paid  or  tendered,  if  demanded,  and  he  fails  to  appear  and 
answer,  without  sufficient  excuse  for  his  delinquency, 
he  will  be  presumed  to  be  indebted  to  the  defendant  to 
the  full  amount  of  the  plaintiff's  demand,  and  his  default 
may  be  taken  and  judgment  rendered  thereon.64  But 
for  a  mere  failure  to  appear,  he  is  not  liable  to  pay  tne 
amount  of  the  plaintiff's  judgment  until  he  has  had  an 
opportunity  to  show  cause  against  the  issuing  of  an  exe- 
cution.65 Nor  should  he,  failing  to  appear,  be  taxed  with 
interest  and  costs.66 

§  780.  Of  showing  cause  against  the  issuance  of 
execution — Setting  aside  default. — A  garnishee  in  de- 

69  Same  as  No.  58.  Clark,  42-371;  Parmenter  v.  Childs, 

eo  Same  as  No.  58.  12-22;  Thomas  v.  Hoffman,  62-125; 

6i  Stockberger  v.  Lindsey,  65-471.  Thompson  v.  Silvers,  59-670;  Mc- 

ea  Wales  v.  Muscatine,  4-302;  Donald  v.  Finley.  87-529. 

Burton  v.  Dist.  Twp.,  11-166.  es  Code,  Sec.  3943;  Langford  v. 

esciapp  v.  Walker,  25-315;  Tay-  Ottumwa  W.  P.  Co.,  53-415;  Pad- 

lor  v.  B.  &  M.  R.   R.   Co.,   5-114;  den  v.  Moore,  58-703;   McPhail  v. 

Jenks    v.    Osceola,      45-554;      Des  Hyatt,  29-137. 

Moines  County  v.  Hinkley,  62-637.  ee  Langford  v.  Ottumwa  W.  P. 

e*  Code,  Sec.  3943;  Westphal  v.  Co.,  53-415. 


§    780.]  GARNISHMENT.  11 

fault  must  be  served  with  notice  to  show  cause  why  exe- 
cution should  not  issue  against  him,  and  this  notice  is 
not  a  scire  facias.67  It  may  be  in  the  following  form : 

FORM  OF  NOTICE  TO  GARNISHEE  TO  SHOW  CAUSE. 

Title,     ) 

Venue,    f 
To ,  garnishee: 

You  are  hereby  notified  that  on  the day  of ,  18 — ,  by  the 

judgment  of  the  court,  rendered  in  the  above  entitled  action,  you  were 
made  liable,  as  a  garnishee,  to  pay  the  judgment  rendered  by  said  court 

in  favor  of  plaintiff,  and  against ,  for  the  sum  of dollars; 

and  you  are  hereby  further  notified  to  be  and  appear,  before  noon  of  the 

second  day  of  the term,  18 — ,  of  said  court,  which  will  commence 

on  the day  of ,  18 — ,  at  the  court  house  in  ,  in  said 

county,  and  show  cause  why  execution  should  not  issue  against  your 
property  to  satisfy  said  judgment. 

,  attorney  for  plaintiff. 

In  no  case,  however,  can  a  judgment  be  rendered 
against  a  garnishee  until  ten  days  after  service  of  no- 
tice on  the  principal  defendant.68  It  is  the  duty  of  the 
garnishee  to  show  that  he  has  a  good  excuse  for  being  in 
default,  that  he  was  not  acting  in  contempt  of  court,  and 
that  he  had  a  good  defense,  which  may  be  made  to  ap- 
pear by  answering  the  statutory  questions,  denying  his 
indebtedness.69  The  showing  of  the  garnishee  for  set- 
ting aside  the  default  and  against  the  issuance  of  an  exe- 
cution should  be  in  writing  under  oath,  and  should  set 
forth  fully  the  facts,  and  be  accompanied  by  a  motion 
asking  that  the  default  be  set  aside.  The  motion  and 
showing  may  be  as  follows: 

FORM  OF  MOTION  TO  SET  ASIDE  DEFAULT. 

Title,     > 
Venue.   $ 

The  undersigned  garnishee  in  the  above  entitled  cause  moves  the 
court  to  set  aside  the  default  and  judgment  entered  against  him  in  this 
cause,  and  that  no  execution  be  issued  on  such  judgment,  and  for  cause 

erFifield  v.  Wood,  9-249;   Evans  Williams,   61-612;    Wise   v.    Roth- 

v.  Mohn,  55-302;   Langford  v.   Ot-  schild,  67-84;    Hamilton  Buggy  Co. 

tumwa  W.  P.  Co.,  53-415;  Padden  v.  v.  Iowa  Buggy  Co.,  88-364;  Ammer- 

Moore,  58-703;   Duncan  v.   Sanga-  man  v.  Vosburg,  70  N.  W.,  620. 

mon  F.  Ins.   Co.,  35-20.  69  Parmenter    v.    Childs,    12-22; 

es  Code,  Sec.  3947;    Williams  v.  Evans  v.  Mohn,  55-302. 


12  GARNISHMENT.  [§  780. 

of  such  motion  presents  the  affidavits  of  himself  and ,  which  are 

attached  hereto  and  made  a  part  of  this  motion. 

,  garnishee. 

(The  motion  may  be  signed  by  the  attorney  of  the  garnishee.) 

FORM  OF  SHOWING  TO  SET  ASIDE  DEFAULT  AND  AGAINST  THE 

ISSUANCE  OF  EXECUTION. 
State  of  Iowa,    ) 

>DD. 

County,    j 

j  >  garnishee  in  the  above  entitled  cause,  being  duly  sworn, 

on  oath  say:'  That  as  such  garnishee  I  fully  expected  to  be  present  at 
this  court  on  the  —  -  day  of  ,  18—  (the  time  the  notice  re- 
quired him  to  appear),  and  give  my  answer  as  such  garnishee;  that  I 
was  on  the  morning  of  said  day  taken  violently  ill  and  was  then  and 
ever  since  have  been,  until  to-day,  unable  to  leave  my  bed  (or,  as  the 
case  may  be,  state  the  facts  fully).  That  at  the  time  I  was  garnished, 
and  ever  since  that  time,  I  was  not  and  have  not  been  in  any  manner 
indebted  to  the  defendant  in  said  action,  nor  have  I  during  said  time 
owed  him  money  or  property  which  is  not  due,  nor  have  I  during  said 
time  had  in  my  possession  or  under  my  control,  any  rights,  property  or 
credits  of  said  defendant,  nor  do  I  know  of  any  debts  owing  to  said  de- 
fendant, due  or  not  due,  nor  of  any  property,  rights  or  credits  belong- 
ing to  him  and  now  in  the  possession  or  under  the  control  of  others. 
That  my  failure  to  be  present  in  accordance  with  the  notice  served  on 
me  w^s  not  due  to  any  desire  to  disobey  the  orders  of  this  court,  but 
was  unavoidable  for  the  reasons  heretofore  given. 

The  affidavit  should  not  only  be  signed  but  sworn  to, 
and  it  should  be  accompanied  by  one  or  more  affidavits 
corroborating  the  statements  of  the  garnishee.  If  the 
showing  to  set  aside  the  default  is  supported  only  by  the 
affidavit  of  the  garnishee,  the  court  may  refuse  to  set  it 
aside.70  A  judgment  by  default  against  a  garnishee  who 
failed  to  appear,  constitutes  no  bar  to  a  subsequent  ac- 
tion against  him  on  the  same  debt  for  which  he  was  gar- 
nished, by  one  claiming  to  own  the  same  by  assignment 
from  the  defendant  in  the  attachment  proceedings  prior 
to  the  garnishment.71  Where  a  garnishee  has  been  re- 
quired to  make  his  answer  more  specific,  and,  upon  fail- 
ure to  do  so,  judgment  has  been  rendered  against  him  by 
default,  a  motion  to  set  aside  the  default  must  be  made 
at  the  term  when  it  was  entered.72  The  notice  to  show 

TO  Parmenter  v.  Childs,  12-22.  72  S'camahorn  v.  Scott,  42-529. 

71  McPhail  v.  Hyatt,  29-137. 


§  780.]  GARNISHMENT.  13 

cause  may  be  served  during  the  term  at  which  the  gar- 
nishee  is  required  to  appear.73  Where  a  garnishee,  after 
answering  the  statutory  questions,  was  summoned  be- 
fore a  referee  for  further  examination,  but  refused  to 
answer,  it  was  held  that  plaintiff  might  have  taken  judg- 
ment against  her,  but  failing  to  move  for  judgment,  or 
having  moved  and  not  insisting  on  a  ruling  on  his  mo- 
tion, but  procuring  an  order  for  the  further  appearance 
and  examination  of  the  garnishee,  she  had  a  right  to  as- 
sume that  no  judgment  would  be  rendered  against  her 
until  such  further  examination  had  been  completed,  and 
it  was  further  held  on  appeal  to  the  supreme  court  from 
the  ruling  of  the  court  below,  excusing  the  garnishee 
from  answering  further,  that  judgment  could  not  be 
rendered  against  her  in  the  supreme  court,  although  it 
reversed  the  ruling  of  the  lower  court.74  Service  of  an 
original  notice  of  the  action  alone  will  not  do  away  with 
the  necessity  for  serving  notice  on  the  principal  defend- 
ant.75 But  the  principal  defendant  may  by  appearing 
waive  the  service  of  notice.76  When  the  court  appoints 
a  commissioner  to  take  the  answer  of  a  garnishee,  with- 
out fixing  a  time  or  place  for  such  answer  to  be  made,  the 
garnishee  should  not  be  held  to  be  in  default  for  failure 
to  appear  and  answer,  unless  notified  by  the  commis- 
sioner of  the  time  and  place  fixed  for  taking  his  answer.77 
Where  the  garnishee  fails  to  appear  in  response  to  the 
notice  to  show  cause  why  execution  should  not  issue,  no 
new  judgment  need  be  entered,  and  no  motion  is  neces- 
sary.78 Where  the  court  has  not  acquired  jurisdiction  of 
the  garnishee  by  proper  notice,  the  fact  that  the  gar- 
nishee, when  served  with  notice  to  show  cause,  appears 
and  protests  that  the  court  has  not  jurisdiction,  will  not 
render  the  judgment  valid.79 

If  the  garnishee  has  appeared  but  failed  to  answer  in 

73  Langford  v.   Ottumwa  W.   P.  ?T  Thomas  v.  Hoffman,  62-125. 
Co.,  53-415.  78  Langford  v.   Ottumwa  W.   P. 

74  Thompson  v.  Silvers,  59-670.  Co.,  53-415. 

75  Wise  v.  Rothschild,  67-84.  79  Padden  v.  Moore,  58-703. 

76  Hamilton  Buggy  Co.    v.  Iowa 
Buggy  Co.,  88-364. 


14  GARNISHMENT.  [§§  781,  782. 

accordance  with  an  order  of  the  court,  judgment  on  de- 
fault may  be  rendered  against  him  under  section  3788 
of  the  code,  and  it  can  only  be  set  aside  as  provided  in 
section  3790  of  the  code.80  But  where  the  garnishee  ap- 
pears in  response  to  the  notice  to  show  cause  and  makes  a 
proper  showing,  the  default  will  be  set  aside. 

§  781.  Of  the  garnishee's  liability  for  costs. — Or- 
dinarily a  garnishee  is  not  liable  for  costs,  but  if  he  re- 
fuses to  answer,  or  seeks  to  avoid  a  fair  investigation  of 
his  liability  to  the  party  attached,  he  will  be  charged 
with  the  costs  caused  by  such  conduct.81  The  failure  of 
the  garnishee  to  pay  into  court  before  answering  does 
not  render  him  liable  for  costs.82 

§  782.  Of  the  garnishee's  exonerating  himself.— 
The  garnishee  may  at  any  time  after  answer  exonerate 
himself  from  further  responsibility  by  paying  over  to  the 
sheriff  the  amount  owing  by  him  to  the  defendant,  and 
placing  at  the  sheriff's  disposal  the  property  of  the  de- 
fendant, or  so  much  of  said  debts  and  property  as  are 
equal  to  the  value  of  the  property  to  be  attached,  all  of 
which  may  afterward  be  treated  as  though  attached  in 
the  usual  manner.83  But  a  judgment  against  a  gar- 
nishee will  not  be  discharged  by  the  payment  of  a  sum 
less  than  the  amount  of  such  judgment,  even  though  the 
judgment  be  rendered  for  a  greater  sum  than  is  actually 
due.84  When  property  is  turned  over  by  the  garnishee  to 
an  officer  upon  certain  conditions,  such  conditions  should 
be  recognized  when  shown  to  the  court  and  carried  out.85 
But  the  garnishee  can  not  be  held  liable  for  not  turning 
over  property  to  the  sheriff  when  he  holds  it  under  a  lien 
which  has  not  been  satisfied.86  Nor  for  property  not 

so  Scamahorn  v.  Scott,  42-529.  172;  Kramer  v.  Adams,  63  N.  W., 

si  Randolph    v.    Heaslip,  11-37;  180;    B.  &  M.  R.  R.  Co.  v.  Hall, 

Fifield    v.   Wood,    9-249;    Fagg   v.  37-620. 

Parker,  11-18.  84  B.  &  M.  R.  R.  Co.  v.  Hall,  37- 

82  Randolph  v.  Heaslip,  11-37.  620. 

ss  Code,  Sec.  3944;    Randolph  v.  85  Buckham  v.  Wolf,  58-601. 

Heaslip,  11-37;  Montrose  Pickle  Co.  ss  Smith  v.  Clark,  9-241. 
v.  Dodson   &  Hills   Mfg.   Co.,   76- 


§§  783,  784.]  GARNISHMENT.  15 

in  his  possession,  nor  when  he  only  has  a  right  of  pos- 
session.87 

§  783.  Of  .the  garnishee's  liability  for  interest. — A 
garnishee  is  not  chargeable  with  interest  on  funds  in  his 
hands  after  the  service  of  notice  of  garnishment,  unless 
the  presumption  which  obtains  that  they  were  not  used 
by  him  from  that  time,  but  kept  as  a  separate  fund  to 
answer  the  judgment  of  the  court,  is  in  some  manner  over- 
come, and  this  rule  is  not  changed  by  the  provisions  of 
the  code,  section  3944.88 

§  784.  Of  the  position  of  the  garnishee  and  his 
rights  generally.  — A  garnishee  occupies  the  relation  of 
defendant  to  the  principal  action,  and  can  not,  it  seems, 
take  a  change  of  venue;  and  when  either  of  the  parties  to 
the  principal  action  have  taken  a  change  of  venue  in 
which  the  garnishee  has  not  joined,  the  cause  as  to  him 
will  be  heard  in  the  court  where  it  was  commenced.89 
A  garnishee  is,  however,  not  a  party  to  an  action  in  such 
a  sense  that  he  is  required  to  make  defense  for  either  of 
the  parties,  between  whom  he  is  supposed  to  be  indiffer 
ent  as  to  the  merits  of  the  case,  nor  is  he  bound  to  inter- 
pose his  exemption  as  a  defense,  and  if  he  does  not  do  so, 
and  a  judgment  is  rendered  against  him,  it  can  not  be  at- 
tacked in  a  collateral  proceeding  for  the  purpose  of  again 
holding  the  garnishee  liable  to  the  principal  defendant.90 
But  if  a  garnishee  fraudulently  procures  himself  to  be 
garnished  without  the  knowledge  of  his  creditors,  for  a 
debt,  the  proceeds  of  which  are  exempt,  and  does  not  set 
up  such  exemption  or  notify  his  creditors,  he  is  guilty  of 
fraud,  and  will  not  be  released  from  liability  by  a  judg- 
ment against  him.91  A  garnishee  can  not  be  made  liable 
for  property  which  is  never  in  his  possession  or  under  his 
control.92  The  garnishee  occupies  the  same  position  as  if 

ST  Smalley  v.  Miller,  71-90.  43-385;  Leiber  v.  U.  P.  R.  Co.,  49- 

ss  Moore  v.  Lowrey,  25-336.  688;   Wignall  v.  Union  C.,  etc.,  Co., 

saWestphal     v.     Clark,    42-371;  37-129. 

Miller  v.  Mason,  51-239.  9*  Smith  v.  Dickson,  58-444. 

»o  Moore  v.  C.,  R.  I.  &  P.  R.  Co.,  »2  Kiggins  v.  Woodke,  78-34. 


16  GAENISHMENT.  [§  784. 

the  defendant  had  sued  him.93  And  while  his  position 
can  be  no  worse  than  it  would  be  if  the  defendant  was  en- 
forcing his  claim,  neither  can  he  occupy  any  better  posi- 
tion.94 He  must  not  be  placed  in  a  situation,  except  by 
his  own  negligence  or  carelessness,  where  he  will  be  com- 
pelled to  pay  the  debt  twice.95  He  must  pay  no  money 
to  his  creditor  until  he  is  discharged  as  gar- 
nishee;  if  he  does,  he  may  be  compelled  to  pay  it 
again.96  He  can  not  be  held  liable  for  a  debt  which  had 
no  existence  at  the  time  of  the  garnishment.97  And  in 
order  to  make  the  garnishee  liable  it  must  appear  that 
he  was  indebted  to  the  defendant  when  the  notice  was 
served,  or  afterward.98  If  his  indebtedness  is  only  con- 
ditional, judgment  should  not  be  rendered  against  him 
until  the  condition  is  fulfilled.99  When  it  was  agreed  by 
and  between  the  mortgagor,  the  mortgagee  and  attach- 
ing creditors,  that  the  property  should  be  sold  in  bulk 
and  the  proceeds  applied  upon  the  attachment,  it  was 
held  that  the  proceeding  amounted  to  a  transfer  of  the 
equity  of  redemption  of  the  mortgagor,  and  took  priority 
over  a  subsequent  garnishment  by  a  second  attaching 
creditor,  of  the  surplus  in  the  sheriff's  hands  after  the 
satisfaction  of  the  first  mortgage.1  A  garnishee  who  has 
notice  of  an  assignment  of  a  negotiable  debt  before 
answering,  and  fails  to  set  up  that  fact  in  defense,  and 
allows  judgment  to  go  against  him,  can  not  plead  such 
judgment  against  the  assignee.2  And  where  the.  credit  or 
of  the  garnishee  has,  by  assignment  in  any  form,  appro- 
priated the  property  or  indebtedness,  and  the  assignment 
has  been  accepted  by  the  assignee,  the  garnishee  can  not 
be  held  liable.3  The  burden  is  on  the  defendant,  or  gar- 

93Fifield  v.  Wood,  9-249;   Smith  McCord  v.  Beatty,  12-299;  Houston 

v.  Clark,  9-241;  Walters  v.  Wash-  v.  Wolcott,  7-173. 

ington  Ins.  Co.,  1-404;  Williams  v.  96  Hughes  v.  Monty,  24-499. 

Housell,    2-154;     Burton    v.    Dist.  97  Thomas  v.  Gibbons,  61-50. 

Twp.,  11-166.  98  Weire  v.  Davenport,  11-49. 

»*  Smith  v.  Clark,  9-241;   Fifield  99  Williams  v.  Young,  46-140. 

v.     Wood,    9-249;     Hartington    v.  i  Phelps  v.  Winters,  59-561. 

Risdon,  43-517;    Victor  v.  Hartford  2  Dalhoff     v.     Coff man,  37-283; 

Ins.  Co.,  33-210;   Cox  v.  Russell,  44-  see  Bailey  v.  U.  P.  R.  Co.,  62-354. 

556;    Metcalf  v.  Kincaid,  87-443.  a  Smith   v.    Clarke,    9-241;     see 

95  Burton  v.  Dist.  Twp.,  11-166; 


§  785-]  GARNISHMENT.  17 

nishee,  to  show  that  the  amount  due  the  defendant  in  the 
principal  action  is  exempt  as  earnings,  and  unless  that 
fact  clearly  appears,  the  debt  will  be  held  subject  to  the 
garnishment.4  And  where  an  attorney  is  garnished  for 
money  collected  by  him  on  a  note,  and  he  has  knowledge 
of  facts  which,  if  pleaded  and  proven,  would  have  pro- 
tected the  rights  of  an  assignee  of  such  note,  he  should 
have  set  up  such  facts  in  his  answer.5  If  issue  is  not 
taken  on  the  garnishee's  answer  at  the  term  it  is  filed, 
the  garnishee  is  entitled  to  notice.6  The  fact  that  one 
or  more  terms  intervene  between  the  garnishment  and 
the  judgment  against  the  garnishee  does  not  show  an 
abandonment  of  the  proceeding.7  The  garnishee  will 
not  be  held  liable  for  the  proceeds  of  exempt  property  of 
the  debtor,  held  by  him  at  the  time  of  the  garnishment 
under  a  mortgage  which  he  has  sold,  or  allowed  to  be 
sold,  for  the  debtor's  benefit.8  So  long  as  money  paid 
into  court  by  a  garnishee  has  not  been  paid  over  to  the 
execution  plaintiff,  a  third  party  claiming  it  may  inter- 
vene in  an  action,  and  assert  his  claim  to  the  money.9 
Where  one  delivered  his  property  to  a  railroad  company 
for  shipment,  and  it  was  garnished  and  held  the  goods, 
and  neither  the  company  nor  the  officer  knew  the  goods 
were  exempt,  and  the  officer,  on  learning  that  fact,  re- 
leased them,  it  was  held  that  neither  the  creditor,  the 
company  nor  the  officer  were  liable  to  the  judgment 
debtor.10 

§  785.  Of  controverting  answer  of  the  garnishee 
and  of  trial. — When  the  answer  of  the  garnishee  is 
made  either  before  the  sheriff  or  at  court,  the  plaintiff 
may  controvert  by  pleadings  filed,  any  fact  or  facts  con- 
tained in  the  answer,  and  may  in  such  pleadings  specif- 
ically set  out  the  facts  relied  on  by  him  to  show  the  lia- 
bility of  the  garnishee,  and  the  issue  thus  joined  must 

Moore  v.  Lowrey,  25-336;  Phillips  1  Phillips  v.  Germon,  43-101. 

v.  Germon,  43-101.  8  Brainard  v.  Simmons,  67-646. 

•*  Oakes  v.  Marquardt,  49-643.  »  Code,   Sec.   3928;    Edwards  v. 

6  Large  v.  Moore,  17-258.  Cosgro,  71-296. 

6  Kienne  v.  Anderson,  13-565.  10  Hynds  v.  Wynn,  71-593. 

Vol.  II-2 


18  GARNISHMENT.  [§   785. 

be  tried  in  the  usual  manner,  and  the  answer  of  the  gar- 
nishee  is  competent  testimony  on  such  trial.11  The 
plaintiff's  pleading  will  be  sufficient  if  it  denies  the 
answer  of  the  garnishee.12  The  proceeding  is  to  be  tried 
as  an  ordinary  proceeding,  and  none  but  legal  issues  can 
be  tried  therein.13  The  parties  have  a  right  to  have  a 
general  verdict  when  the  issue  is  tried  to  a  jury.14  It  is 
not  permissible  to  further  examine  the  garnishee  on  a 
jury  trial  on  issues  joined  on  the  garnishee's  answers 
since  new  issues  might  be  opened,  and  for  the  further  rea- 
son that  the  examination  of  the  garnishee  is  not  a  matter 
for  the  jury.15  The  credit  and  weight  to  be  given  to  the 
answer  of  the  garnishee  must  be  left  for  the  determina- 
tion of  the  jury,  without  instructions  or  reference  thereto 
from  the  court.16  Though  the  answer  of  the  garnishee 
may  positively  deny  any  indebtedness,  yet  the  facts  and 
circumstances  disclosed  in  the  answer  may  show  that  he 
is  indebted  and  liable,  and  such  facts  and  circumstances 
may  be  relied  on  by  the  plaintiff  to  establish  liability.17 
The  liability  of  the  garnishee  will  never  be  presumed, 
nor  will  he  be  charged  on  his  answer  alone,  unless  it  con- 
tains a  clear  admission  of  a  debt  due  to,  or  the  possession 
of  money  or  property  of  the  defendant,  not  exempt  from 
execution.  If  the  question  of  his  liability  is  left  in  rea- 
sonable doubt,  judgment  should  be  rendered  in  his 
favor.18  If  the  garnishee's  answer  is  not  controverted, 
it  must  be  taken  as  true.19  If  the  garnishee  has  a  lien  on 
attached  property  in  his  hands,  he  has  a  right  to  hold  it 
until  such  lien  is  discharged.20  The  trial  of  an  issue 
upon  the  answer  of  the  garnishee  denying  indebtedness, 
must  take  place  in  the  court  wherein  the  principal  action 

11  Code,  Sec  3945;  Drake  v.  Buck,  McNanny,  37-75;   Bean  v.  Barney, 

35-472;  Brainard  v.  Simmonds,  58-  10-498;  Drake  v.  Buck,  35-472. 

464;  Easley  v.  Gibbs,  29-129.  IT  Bebb  v.  Preston,  1-460;  Church 

—    12  Henny  Buggy  Co.  v.  Patt,  73-  v.  Simpson,  25-408. 

485.  is  Morse     v.     Marshall,     22-290; 

is  Seers  v.  Thompson,  72-61.  Smith  v.  Clark,  9-241;   Farwell  v. 

„     14  Shadbolt  &  Boyd  Iron  Co.  v.  Howard,  26-381;  Letts-Fletcher  Co. 

Camp,   80-539.  v.    McMaster,    83-449;    Kiggins    v. 

.      is  Kelley  v.  Andrews    71  N.  W.,  Woodke,  78-34. 

251.      I  &*L£4^  i/7  19  Bean  v.  Barney,  10-498. 

is  Code,    Sec.   3945;    Fairfield  v.  20  Smith  v.  Clark,  9-246. 


§  785.]  GARNISHMENT.  19 

is  pending,  and  the  garnishee  is  not  entitled  to  a  change 
of  venue  to  the  county  of  his  residence.21  If  the  gar- 
nishee denies  any  indebtedness,  and  the  plaintiff  files  a 
pleading  controverting  such  answer,  alleging  in  general 
terms  an  indebtedness,  the  garnishee  can  not  object  to 
the  introduction  of  evidence,  tending  to  show  an  indebt- 
edness, having  failed  to  demur  or  move  to  make  the  plead- 
ing more  specific.22  If  a  garnishee  after  making  his 
answer  fails  to  move  to  be  discharged,  he  must  take  no- 
tice of  whatever  is  done  in  the  case,  and  follow  it  until 
it  is  disposed  of.23  If  the  garnishee  answers  confessing 
an  indebtedness,  the  defendant  may  make  any  objection 
that  the  indebtedness  is  exempt  from  execution  a.gainst 
the  debtor,  or  that  the  principal  judgment  is  satisfied,  or 
any  other  defense  of  like  nature.24  The  pleading  con- 
troverting the  answer  need  not  be  sworn  to.25  The  gar- 
nishee process  only  reaches  the  right  which  the  defend- 
ant actually  has  in  the  property  at  the  time  it  is  sought 
to  be  attached.26  Whether  the  facts  show  an  indebted- 
ness to  the  principal  debtor  is  a  question  of  law,  but  if 
the  answer  is  controverted  and  evidence  introduced,  the 
supreme  court  can  not  pass  on  the  correctness  of  the  de- 
cision unless  all  the  evidence  is  before  it.27  Though  the 
notice  to  a  garnishee  to  appear  and  answer  specifies  the 
wrong  court,  yet,  if  answers  are  taken  by  the  sheriff, 
under  execution  from  the  proper  court,  and  such  answers 
are  duly  returned,  the  court  acquires  jurisdiction  to 
render  judgment  against  the  garnishee.28  When  a  debt- 
or is  garnished  in  a  suit  against  a  creditor,  but  no  judg- 
ment has  been  rendered  in  the  proceeding,  he  may,  in 
defense  to  an  action  by  the  assignee  of  his  creditor's 
claim,  to  whom  such  claim  has  been  assigned  after  the 

21  Miller  v.  Mason,  51-239;  Smith         25  Code,  Sec.  3586. 

v.  Dickson,  58-444;  see  Westphal  v.  26  Thomas   v.    Hillhouse,    17-67; 

Clark,  42-371,  where  it  is  intimated  Huntington  v.  Risdon,  43-517,  and 

a  change  of  venue  would  lie.  cases  cited. 

22  Ruby  v.  Schee,  51-422.  27  Sheppard  v.  Downing,  14-597. 

23  Chase  v.  Foster,  9-429.  28  Fanning  v.  Minn.  R.  Co.,  37- 

24  Wales  v.  Muscatine,  4-302.  379. 


20  GARNISHMENT.  [§    785. 

garnishment,  plead  the  pendency  of  such  proceeding  as 
a  matter  in  abatement  but  not  in  bar  of  the  action.29 

While  a  garnishment  of  an  employer  for  wages  of  an 
employe  will  hold  not  only  wages  due,  but  such  as  after- 
ward become  due,  yet,  as  the  employe,  if  a  married  man, 
is  entitled  to  have  ninety  days'  wages  exempt  by  the  code, 
section  4008,  the  employer  is  not  liable  to  a  judgment  in 
such  a  case,  unless  it  appears  that  at  the  time  of  the 
garnishment,  or  some  time  subsequent  thereto,  he  had 
more  than  ninety  days'  wages  in  his  hands.30  The  gar- 
nishee's  answer  is  in  the  nature  of  evidence,  and  is  not  a 
part  of  the  record  unless  made  so  by  a  bill  of  exceptions.31 
A  garnishee  procuring  himself  to  be  garnished  without 
the  knowledge  of  his  creditor,  for  a  debt  the  proceeds  of 
which  are  exempt,  and  failing  to  plead  such  exemption, 
or  notify  his  creditor  so  that  he  might  do  so,  is  guilty  of 
a  fraud  and  will  not  be  released  from  liability  by  a  judg- 
ment against  him.32  When  a  garnishee  answered  that 
he  was  informed  and  believed  that  the  defendant  was  a 
married  man  living  with  his  family,  it  was  not  sufficient 
to  show  the  right  of  exemption;  it  should  have  been  al- 
leged to  be  a  fact  and  also  that  he  was  a  resident  of  this 
State.33  An  indebtedness  due  from  a  resident  of  this 
State  to  a  non-resident  for  services  rendered  outside  of 
the  State,  is  subject  to  garnishment  in  an  action  brought 
against  such  non-resident  by  publication.34  The  equity 
of  redemption  of  the  mortgagor  of  personal  property, 
after  condition  broken,  is  subject  to  sale  or  transfer  and 
passes  under  a  general  assignment,  and  after  such  as- 
signment, the  mortgagee  is  not  subject  to  garnishment 
in  a  suit  against  the  mortgagor.35  Judgment  against  a 
garnishee  can  not  be  properly  entered  where  there  is  no 
return  to  the  writ  of  attachment  showing  the  fact  of  gar- 
nishment.36 When  the  trial  is  required  to  determine  the 

29  Cllse  v.  Freeborne,  27-280.  3*  Mooney  v.  U.  P.   R.  Co.,   60- 

so  Davis  v.  Humphrey,  22-132.  346. 

si  Brainard  v.  Simmons,  58-464.  ss  Gimble  v.  Ferguson,  58-414. 

32  Smith  v.  Dickson,  58-444.  se  Rock   v.    Singmaster,   62-511; 

33  Smith  v.  C.  &  N.  W.  R.  Co.,  McDonald  v.  Moore,  65-171. 
60-312. 


§   785.]  GARNISHMENT.  21 

rights  of  all  the  parties,  the  question  as  to  whether  the 
garnishee  is  indebted  to  the  defendant,  is  not  to  be  pre- 
sented separate  from  that  as  to  whether  the  debt  in  his 
hands  is  to  be  condemned  for  the  payment  of  such  debt.37 
Where  the  garnishee  seeks  in  equity  to  have  a  judgment 
against  him  set  aside,  on  the  ground  that  the  notice-  is 
not  sufficient  to  confer  jurisdiction,  the  burden  is  not  on 
him  to  show  that  he  was  not  indebted,  but  is  on  the 
adverse  party,  and  a  notice  to  a  garnishee  requiring  him 
to  appear  on  any  other  day  than  the  first  day  of  the  next 
term  of  court  is  void.38  A  judge  can  not,  in  the  absence 
of  an  agreement,  hear  and  determine  in  vacation  a  mo- 
tion for  the  discharge  of  a  garnishee  against  whom  a 
judgment  has  been  rendered  in  a  justice's  court,  and  who 
appealed  therefrom.39  Where  a  garnishee  received  a 
note  belonging  to  the  principal  debtor,  with  the  under- 
standing that  he  should  collect  it  and  apply  the  proceeds 
to  the  payment  of  a  debt  owing  to  him  by  the  principal 
debtor,  and  that  the  residue  should  be  paid  to  another 
creditor  of  the  principal  debtor,  but  such  creditor  was 
not  a  party  to  the  arrangement,  it  was  held  that  such 
residue  in  the  hands  of  the  garnishee  was  subject  to  gar- 
nishment as  the  property  of  the  principal  debtor.40  If 
the  garnishee  claims  the  fund  in  his  hands  as  compen- 
sation for  services  rendered  the  principal  debtor,  it  is 
incumbent  on  him  to  prove  the  value  of  such  services,  or 
that  they  were  performed  for  a  stipulated  price.41  Where 
the  allegations  pleaded  to  controvert  the  answer  of  a 
garnishee  do  not  tend  to  establish  his  liability,  they 
should  be  stricken  out  on  motion.42  The  exemption  laws 
of  another  State  or  Territory  can  not  be  pleaded,  or  re- 
lied on  as  a  defense,  either  by  the  garnishee  or  judg- 
ment debtor  in  a  garnishment  proceeding  in  this  State.43 
Where  the  garnishee  before  the  execution  was  issued 

37  Williams  v.  Williams,  61-612.          «  Broadstreet  v.  Clark,   65-670; 

ss  padden  v.  Moore,  58-703.  Newell  v.  Hayden,  8-140;  Leiber  v. 

39  Laughlin  v.  Peckham,  66-121.  U.    P.    R.    Co.,   49-688;    Mooney   v. 

40  Witter  v.  Little,  66-431.  U.  P.  R.  Co.,  60-346;  B.  &  M.  R.  Co. 

41  Same  as  No.  40.  v.   Thompson,   31   Kan.,   180 
•*2  McDonald  v.  Moore,  65-171. 


22  GARNISHMENT.  [§§  786,  787. 

stated  to  the  execution  plaintiff  that  he  was  indebted  to 
the  execution  defendant,  and  he  would  withhold  payment 
until  he  could  be  served  with  notice  of  garnishment,  he 
was  not  thereby  estopped  from  denying  that  he  was  in- 
debted to  the  execution  defendant  at  the  time  he  was 
garnished.44  While  it  is  not  held  that  a  reply  to  the 
answer  of  the  garnishee  is  necessary,  yet,  if  no  reply  is 
filed,  the  issues  are  limited,  and,  in  such  case,  fraud  not 
having  been  pleaded,  can  not  be  submitted  to  the  jury.45 
If  a  judgment  appearing  of  record  to  belong  to  the  execu- 
tion defendant,  in  fact  is  owned  by  another,  it  can  not  be 
subjected  to  execution,  when  it  appears  that  the  execu- 
tion plaintiff  has  not  been  prejudiced  by  the  fact  that 
the  judgment  appeared  to  belong  to  his  debtor.46 

§  786.  Of  notice  to  the  principal  defendant. — No 
judgment  can  be  entered  in  any  garnishment  proceedings 
condemning  the  property  or  debt  in  the  hands  of  the  gar- 
nishee, until  the  principal  defendant  has  had  ten  days' 
notice  of  such  proceedings;  such  notice,  if  the  case  is  in 
the  district  court,  must  be  served  in  the  same  manner  as 
an  original  notice.47  And  the  original  notice  will  not 
answer  in  lieu  of  the  notice  required  by  the  statute.48 
But  the  principal  defendant  may  by  appearing  waive  the 
notice.49  After  the  principal  defendant  has  been  noti- 
fied, he  is  bound  to  take  notice  of  any  further  steps  in 
the  garnishment  proceedings.50,  A  notice  in  .suit  in  the 
justice  court  stated  that  an  attachment  had  been  issued 
and  a  railroad  company  named  had  been  attached  as  a 
garnishee.  It  was  held  that  it  was  a  sufficient  statutory 
notice  upon  the  principal  defendant.51 

§  787.  Of  showing  the  exemption  of  the  property, 
etc. — The  defendant  in  the  main  action  may,  by  suitable 

44  Starry  v.  Korab,  65-267.  v.  C.,  R.  I.  F.  &  N.  W.  R.  Co.,  C2- 

45  Freese    v.    Co-operative    Coal      494. 

Co    67-42  r8  Wise  v-  Rothschild,  67-84. 

..Beaver  Val,ey  Bt  v.  Cousins,      B^g^**^  °*  '•  «™ 

"code.  Sec.  3947;    Williams  v.      w'° £™™*<™»  v.  Vosburg,  70  NV«/ A. 

7     Williams,  61-612;   Wise  v.  Roths-          si  Ammerman  v.  Vosburg,  70  N/ 
child,  67-84;  see  Buchanan  Co.  Bk.      W.,  620. 


§   788.]  GARNISHMENT.  23 

pleading  filed  in  the  garnishment  proceedings,  set  up 
facts  showing  that  the  debt  or  the  property,  with  which 
it  is  sought  to  charge  the  garnishee  is  exempt  from  execu- 
tion, or  for  any  other  reason  is  not  liable  for  plaintiff's 
claim,  and  if  issue  thereon  be  joined  by  the  plaintiff,  it 
must  be  tried  with  the  issues  as  to  the  garnishee's  lia- 
bility. If  such  debt  or  property,  or  any  part  thereof,  is 
found  to  be  thus  ex.empt  or  not  liable,  the  garnishee  must 
be  discharged.52 

§  788,  When  judgment  will  be  rendered  against  a 
garnishee. — When  it  appears  from  the  answer  of  the 
garnishee,  or  on  trial  of  an  issue  on  his  answer,  that  he 
was  indebted  to  the  defendant,  or  had  any  of  the  defend- 
ant's property  in  his  hands,  either  at  the  time  of  being 
served  with  the  notice  of  garnishment,  or  at  any  time 
subsequent  thereto,  he  is  liable  to  the  plaintiff  in  case 
judgment  is  finally  recovered  by  him,  to  the  full  amount 
of  that  judgment,  or  to  the  amount  of  the  indebtedness 
of  the  garnishee  and  of  the  property  so  held  by  him ;  and 
a  conditional  judgment  will  be  entered  against  him  for 
the  amount  due  from  the  garnishee  to  the  defendant  in 
the  main  action,  or  for  the  delivery  to  the  sheriff  of  any 
money  or  property  in  the  garnishee's  hands,  belonging 
to  the  defendant  in  the  main  action,  within  a  time  fixed 
by  the  court,  and  for  the  value  of  the  same  as  fixed  in 
said  judgment,  if  not  delivered  within  the  time  thus 
fixed  unless  before  such  judgment  is  entered  he  pays  or 
delivers  the  money  or  property  owing  or  in  his  hands  to 
the  sheriff,  which  he  may  do  at  any  time  after  answer  and 
before  judgment.  The  property  thus  delivered  will  be 
treated  as  if  levied  upon  under  the  writ.53  Judgment 
can  not  be  rendered  against  a  garnishee  unless  judgment 
has  been  recovered  against  the  defendant  in  the  main 
action.54  An  answer  of  the  garnishee  that  he  was  in- 
debted to  the  defendant  on  the  evening  of  a  certain  day 

82  Code,  Sec.  3948.  v.  Albaugh,  2  G.  Gr.,  125;  Bean  v. 

63  Code,  Sec.  3946.  Barney,  10-498;  Toll  v.  Knight  15- 

ci  Barton  v.  Smith,  7-85;  Wilson      370. 


24  GARNISHMENT.  [§  789. 

about  the  time  of  the  service  of  the  notice  of  garnishment, 
(it  having  been  served  the  next  day)  will  warrant  a  judg- 
ment against  him.55  Where  the  garnishee  held  property 
of  the  execution  debtor  to  the  value  of  seven  hundred 
dollars  under  a  chattel  mortgage,  which  was  fraudulent, 
because  made  for  the  purpose  of  putting  the  property 
beyond  the  reach  of  creditors,  but  a  portion  of  the  prop- 
erty so  held  was  exempt  in  the  hands  of  the  execution 
debtor,  judgment  could  not  be  rendered  against  the  gar- 
nishee for  the  value  of  the  exempt  property,  and  there 
being  no  evidence  of  its  value,  the  court  could  not  de- 
termine the  extent  of  the  garnishee's  liability  and  could 
not  render  any  judgment  against  him.56  The  garnishee 
will  not  be  required  to  pay  over  more  than  the  amount  of 
the  plaintiff's  judgment,  interest  and  costs.57  Where  a 
judgment  is  rendered  against  the  defendant  the  court 
will  take  judicial  notice  of  the  fact  and  that  plaintiff  is  a 
creditor  of  the  defendant.58 

§  789.  Of  the  form  of  the  judgment. — The  judgment 
must  be  for  the  amount  found  against  the  garnishee,  but 
to  be  discharged  by  him  on  paying  the  money,  or  deliver- 
ing the  property  to  the  sheriff,  on  failure  of  which  the 
judgment  may,  on  motion,  be  made  absolute.59 

But  the  judgment  against  the  garnishee  can  not  ex- 
ceed that  against  the  defendant  in  the  principal  action, 
and  the  costs  in  such  action.60  If  the  debt  from  the  gar- 
nishee to  the  principal  defendant  is  not  due,  execution 
must  be  suspended  until  its  maturity.61  The  garnishee 
can  not  be  made  liable  on  a  mortgage  which  is  not  nego- 
tiable but  is  assignable,  unless  the  mortgage  is  produced, 
or  the  garnishee  completely  exonerated  or  indemnified 
from  liability  thereon,  after  he  may  have  satisfied  the 
judgment.62  And  a  garnishee  will  be  liable  to  a  judg- 
es Hoops  v.  Culbertson,  17-305.  «o  Timmons  v.  Johnson,  15-23; 

56  Brainard  v.  Simmons,  67-646.      McDonald   v.    Creager,   65   N.   W., 

5T  McDonald    v.    Creager,    65   N.      1021. 
•W.,  1021.  ei  code,  Sec.  3949. 

ss  Kenosha  Stove  Co.  v.  Shedd,  62  Timmons  v.  Johnson,  15-23; 
82-540.  Yocum  v.  White,  36-288. 

59  Stadler  v.   Parmlee,   14-175. 


§  789.]  QAENISHMENT.  25 

ment  if  he,  after  garnishment,  pays  over  money  in  his 
hands  to  the  defendant  as  agent  when  such  payment  is 
so  made  with  the  knowledge  of  the  garnishee  that  it  is 
for  the  purpose  of  defrauding  creditors  of  the  defendant, 
and  defendant  was,  in  fact,  the  owner  of  the  money,  and 
the  garnishee  knew  that  the  object  of  the  garnishment 
was  to  reach  it.63  Where  a  garnishee  had  been  a  partner 
of  defendant  and  held  unpaid  accounts  belonging  to  the 
firm,  judgment  should  be  rendered  only  that  he  pay  over 
the  sum  to  which  the  defendant  was  entitled,  as  the  same 
should  be  collected.64  A  money  judgment  can  not  be 
rendered  against  a  garnishee  upon  his  answer  showing 
that  he  has  in  his  possession  property  of  the  defendant 
upon  which  he  has  a  lien,  without  giving  him  an  oppor- 
tunity to  discharge  the  judgment  by  a  surrender  of  the 
property  upon  provision  being  made  for  the  payment  of 
his  lien.65  The  court  can  not  render  a  contingent  or  al- 
ternative judgment.66  If  the  garnishee  is  found  indebt- 
ed to  the  defendant  on  a  contract  payable  in  property 
other  than  money,  the  judgment  must  be  conditioned 
that  it  may  be  discharged  in  property,  or  on  failure  there- 
of become  absolute  and  a  general  execution  issue.67 
Where  the  liability  of  other  garnishees  would  be  in- 
creased by  the  discharge  of  one,  such  other  garnishees 
have  an  interest  in  the  determination  of  the  liability  of 
their  co-garnish.ee.68  An  unconditional  judgment  should 
not  be  rendered  against  a  garnishee  until  judgment  is 
rendered  against  the  defendant,  but  a  conditional  judg- 
ment may  be  entered  which  will  hold  the  debt  or  prop- 
erty pending  the  final  adjudication.69 

The  garnishee  can  not  object  to  a  judgment  by  confes- 
sion under  which  it  is  sought  to  hold  him  liable  on  ac- 
count of  errors  or  irregularities  which  do  not  render  it 

es  Kesler  v.  St.  John,  22-565.  ee  Battell  v.  Lowery,  46-49;    see 

e*  Cox  v.  Russell,  44-556.  Seals  v.  Wright,  37-171. 

ss  Hawthorn  v.  Unthank,  52-507;  e?  Stadler    v.    Parmlee,      14-175; 

Capital  City  Bank  v.  Wakefield,  83-  Ransom  v.  Stanberry,  22-334. 

46;   Brakke  v.  Hoskins,  67  N.  W.,  cs  Creasap  v.  Bower,  41-210. 

235.  en  Capital   City  Bank  v.   Wake- 
field,  83-46. 


26  GARNISHMENT.  [§  790. 

void.70  The  garnishee  can  maintain  an  action  to  set 
aside  a  judgment  rendered  against  him  by  fraud.71  And 
see.72 

§  790.  Of  debts  due  by  negotiable  paper, — No 
judgment  can  be  rendered  against  a  garnishee  on  a  debt 
due  by  a  negotiable  or  assignable  paper  unless  such 
paper  is  delivered,  or  the  garnishee  completely  exoner- 
ated or  indemnified  from  all  liability  thereon,  after  he 
may  have  satisfied  the  judgment.73  But  if  he  fails  to 
require  the  indemnity,  and  does  not  interpose  to  pre- 
vent a  judgment  against  him,  the  judgment  rendered 
against  him  will  constitute  no  defense  in  an  action  by 
the  holder  of  the  paper,  who  received  i,t  before  the  gar- 
nishment.74 Where  the  answer  of  a  garnishee  shows 
that  he  holds  a  note  executed  by  a  third  party  to  the 
debtor  which  he  received  from  the  latter  for  the  pur- 
pose of  paying  a  certain  judgment  against  the  debtor, 
on  which  the  garnishee  is  a  surety  for  the  stay  of  execu- 
tion, judgment  can  not  be  rendered  against  the  gar- 
nishee.75 Where  the  answer  shows  that  the  garnishee 
holds  a  mortgage  on  personal  property  of  the  debtor 
which  is  in  the  possession  of  the  latter,  and  the  value  is 
not  shown,  no  judgment  can  be  rendered  against  him.76 
While  the  rights  of  the  holder  of  a  promissory  note  may 
be  affected  by  a  garnishment  of  the  maker,  before  the 
transfer  under  which  he  claims,  the  rights  of  a  holder 
who  receives  a  note  before  garnishment  are  not  affected 
thereby.77  An  order  for  a  judgment  in  the  alternative, 
or  on  condition  that  certain  things  are  not  done,  is  not 
a  final  judgment  on  which  execution  can  issue,  and  if 
execution  is  issued  thereon  it  may  be  enjoined.78 

The  provisions  of  section  3950  of  the  code  may  be 

TO  Henny  Buggy  Co.  v.  Patt,  73-  mons  v.  Johnson,  13-23;  McCord  v. 

485.  Beatty,    12-299;    Stevens  v.    Pugh, 

7iSearle  v.  Fairbanks,  80-307.  12-430;  McPhail  v.  Hyatt,  29-137. 

72  Boyle  v.  Maroney,  73-70.  74  Yocum  v.  White,  36-288. 

73  Code,    Sec.    3950;      Yocum    v.  75  Dryden  v.  Adams,  29-195. 
White,  36-288;    Hughes  v.  Monty,  76  First  Nat'l  Bk.  v.  Perry,  29-266. 
24-499;     Seals   v.   Wright,    37-171;  77  Fowler  v.  Doyle,  16-534. 
Kauffman  v.  Jacobs,  49-432;  Tim-  78  Seals  v.  Wright,  37-171. 


§    791.]  QAENISHMENT.  27 

waived  by  the  garnishee.79  Under  the  revision  of  1860 
it  was  held  that  the  garnishee  was  liable  on  negotiable 
paper  assigned  after  maturity,  without  indemnity  being 
given.80 

§  791.  Of  conclusiveness  of  the  judgment,  appeal, 
etc. — The  judgment  in  the  garnishment  action  condemn- 
ing the  property  or  debt  in  the  hands  of  the  garnishee 
to  the  satisfaction  of  the  plaintiff's  claim,  is  conclusive 
between  the  garnishee  and  the  defendant,  and  is  a  judg- 
ment in  rem  and  can  not  be  collaterally  attacked.81  The 
clerk  in  docketing  the  original  action  must  show  by  a 
statement  therein  all  the  garnishments  in  the  case,  and 
when  judgment  is  rendered  against  a  garnishee  such 
judgment  must  distinctly  refer  to  the  original  judg- 
ment.82 An  appeal  lies  in  all  garnishment  cases  at  the 
instance  of  the  plaintiff,  the  defendant,  the  garnishee 
or  any  intervenor  claiming  the  property  or  money.83  In 
a  garnishment  proceeding  before  a  justice  of  the  peace 
having  jurisdiction  of  the  person  of  the  garnishee,  as 
well  as  the  subject-matter  of  an  erroneous  judgment, 
which  is  rendered  against  the  garnishee,  from  which  he 
neglects  to  appeal,  a  court  of  equity  will  not  grant  relief.84 
The  legal  effect  of  a  judgment  against  the  garnishee  on 
his  answer,  condemning  the  property  in  his  hands,  is 
to  satisfy  to  the  extent  thereof,  the  indebtedness  between 
the  garnishee  and  the  principal  debtor,  and  the  judg- 
ment need  not  in  terms  express  such  satisfaction.85 
Money  paid  out  by  a  garnishee  in  connection  with  the 
proceedings  in  the  original  case,  but  not  in  accordance 
with  any  judgment  in  such  case,  can  not  be  allowed  in 
satisfaction  of  his  indebtedness.86  An  assignee  of  non- 
79  McPhail  v.  Hyatt,  39-137.  82  Code,  Sec.  3952;  Boyd  v.  Rut- 
so  McCord  v.  Beatty,  12-299;  S-te-  ledge,  25-271. 

vens  v.  Pugh,  12-430;  Walters  v.  ss  Code,  Sec.  3953;  Sinard  v. 
W.  Ins.  Co.,  1-404;  see  HugKes  v-  Gleason,  19-165;  Fanning  v.  Minn. 
Monty,  24-499.  R.  Co.,  37-379;  see  Daniels  v.  Clark, 

si  Code,  Sec.  3951;  Stadler  v  38-556;  Farwell  v.  Tiffany,  82-405. 
Parmlee,  14-175;  Houston  v.  Wai-  s*  B.  &  M.  R.  R.  Co.  v.  Hall  37- 
cott,  1-86;  Moore  v.  C.,  R.  I.  &  P.  620. 

R.  Co.,  43-385.  so  Stadler  v.  Parmlee,  14-175. 

se  Myers  v.  McHugh,  16-335. 


28  GARNISHMENT.  [§   791. 

negotiable  paper  must  give  the  maker  notice  of  the  as- 
signment before  such  maker  is  required  to  answer  as 
garnishee  in  a  suit  against  the  assignor,  or  at  least  be- 
fore judgment  is  rendered  against  such  garnishee,  or 
he  will  be  barred  by  the  judgment.87  If  the  debtor 
brings  suit  against  the  garnishee  in  this  State  for  a  debt 
due  him,  the  latter  may  set  up  the  fact  that  he  has  been 
garnished  on  such  debt  in  another  State.88  If  the  de- 
fendant relies  upon  garnishment  proceedings  in  an- 
other State  as  a  bar  to  an  action,  he  may  show  that  the 
principal  judgment  on  which  the  garnishment  proceed- 
ing is  based,  is  invalid  for  want  of  service  of  notice.89 
The  release  of  a  garnishee  who  is,  in  fact,  indebted,  does 
not  estop  the  creditor  from  levying  on  property  bought 
with  money  paid  by  the  garnishee  to  the  debtor,  and 
which  was  due  and  unpaid  at  the  time  of  garnishment 
and  release.90  Where  a  judgment  debtor  has  been  gar- 
nished and  judgment  rendered  against  him,  without  no- 
tice of  a  prior  assignment  of  the  judgment,  the  assignee 
can  not  compel  payment  while  the  judgment  in  the  gar- 
nishment proceedings  remains  in  force.91  Where  one 
pleading  is  filed  controverting  the  answers  of  two  gar- 
nishees,  and  afterward  one  garnishee  is  dismissed,  plain- 
tiff may  file  further  pleading,  taking  issue  on  the  answer 
of  the  one  not  discharged.92  An  erroneous  judgment 
appealed  from  will  not  be  reviewed  by  the  supreme  court 
unless  it  appears  that  exception  was  taken  at  the  time 
o£  its  rendition.93  An  appeal  lies  from  an  order  dis- 
charging a  garnishee.04  Plaintiff,  a  judgment  creditor, 
obtained  a  decree  setting  aside  a  fraudulent  deed  by  the 
debtor  and  adjudging  that  the  rents  of  property  so  con- 
veyed (which  accrued  in  1890  and  1891)  were  subject  to 

87  Walters    v.    Washington    Ins.  »i  McGuire  v.  Pitts'  Sons,  42-535. 

Co.,  1-404;   McCord  v.  Beatty,  12-  92  Coffman  v.  Ford,  56-185. 

299.  93  Eason  v.  Lester,  31-475;   Pig- 

ss  Moore  v.  C.,  R.  I.  &  P.  R.  Co.,  man  v.  Denny,  12-396;   McKinley  v. 

43-385;  Leiber  v.  U.  P.  R.  Co.,  49-  Bechtel,  12-561;   Downing  v.  Har- 

688.  mon,  13-535;  Robison  v.  Saunders, 

as  O'Rourke  v.  C.,  M.  &  St.  P.  R.  14-539;     Perkins   v.  Whittam,   14- 

55-332.  596. 

»o  Milligan  v.  Bowman,  46-55.  94  National  Bk.  v.  Chase,  71-120. 


§  791.]  GARNISHMENT.  29 

% 

plaintiff's  judgment  if  taken  by  due  process  of  law,  but 
the  plaintiff  had  no  lien  thereon.  Afterwards  plaintiff 
garnished  "W",  in  whose  possession  the  rents  were.  "D" 
intervened,  claiming  the  fund  on  the  ground  that  he  had 
recovered  judgment  against  the  defendant  in  1892,  and 
had  garnished  "W"  before  the  notice  was  served  in  plain- 
tiff's case,  but  he  failed  to  show  whether  he  became  a 
creditor  of  defendant  before  or  after  the  fraudulent 
deed  was  made,  or  that  the  same  was  invalid  as  to  him. 
It  was  held  that  plaintiff's  claim  was  entitled  to  priority 
over  that  of  "D's"  claim.95  When  an  order  is  entered 
in  garnishment  proceedings  and  the  garnishee  has  uncol- 
lected  securities  of  the  debtor  in  his  hands  which  he  is 
required  to  account  for,  supplemental  proceedings  may 
be  had  on  his  failure  to  account  and  further  orders  be 
made,  and  a  garnishee  who  is  required  by  order  of  the 
court  to  account  for  the  proceeds  of  securities  in  his 
hands  after  collections  is  entitled  to  credit  for  proper 
expenses  of  collections,  and  may  pay  attorneys  in  neces- 
sary litigation  reasonable  compensation.96  The  fact  that 
a  garnishee  testified  that  the  money  attached  was  given 
him  by  the  debtor  to  pay  a  claim,  does  not  estop  him  to 
deny  obligation  on  the  claim  when  suit  is  brought  there- 
on against  him.97  Garnishee  proceedings  commenced 
in  this  State  against  a  railroad  company  for  wages  due 
an  employe  are  not  abated  by  the  commencement  of  an 
action  in  another  State  by  the  employe  against  the  rail- 
road for  such  wages.  Nor  does  a  judgment  recovered 
against  the  railroad  in  such  action  bar  the  garnishment 
proceeding.  The  retroactive  provision  in  a  law  giving 
exemptions  can  not  avail  in  a  garnishment  proceeding 
instituted  before  the  passage  of  the  law.98 

»s  Clark  v.  Raymond,  66  N.  W.,  97  Walker  v.  Irwin,  62  N.  W.,  785. 

86.  eswillard  v.  Sturm,  65  N.   W., 

»« McDonald   v.   Creager,   65   N.  847. 
W.,  1021. 


CHAPTER  XLIX. 

OF  EXECUTIONS  AND  EXEMPTIONS. 

Sec.  792.  Within  what  time  an  execution  may  issue. 

793.  What  judgments  and  orders  are  enforceable  by  execution. 

794.  Into  what  counties  the  writ  may  run. 

795.  When  issued  on  Sunday. 

796.  Of  the  issuance  of  the  writ,  and  of  the  duty  of  the  clerk. 

797.  Of  requisites  of  the  writ  generally. 

798.  Of  proceedings  when  the  writ  is  issued  to  another  cotfnty. 

799.  Of  forms  of  executions. 

800.  When  a  stay  of  execution  is  allowed. 

801.  Of  debts  contracted  prior  to  September  1,  1873. 

802.  Of  stay  bonds  and  their  approval. 

803.  Effect  of  stay  after  execution  has  been  issued — The  bond. 

804.  Of  sureties  preventing  or  determining  the  stay  of  execution. 

805.  Duty  of  sheriff  on  receiving  aji  execution. 

806.  Same — When  against  principal  and  surety. 

807.  Of  the  levy  of  the  execution. 

808.  When  sheriff  dies  or  goes  out  of  office. 

809.  How  the  levy  is  made. 

810.  Of  levying  on  judgments,  bank  bills,  etc. 

811.  Of  proceedings  by  garnishment. 

812.  Of  levying  on  mortgaged  chattels. 

813.  Of  the  levy  on  partnership  property,  and  proceedings  there- 

under. 

814.  Of  executions  against  municipal  corporations. 

815.  How  stock  interests  of  the  defendant  in  a  corporation  levied 

on. 

816.  Debtor  may  pay  the  sheriff. 

817.  Effect  of  the  levy,  surplus,  etc. 

818.  When  an  indemnity  bond  may  be  demanded. 

819.  Levy  discharged,  when. 

820.  Of  the  bond,  its  terms  and  conditions. 

821.  Of  the  application  of  proceeds,  etc. 

822.  What  property  is  exempt  from  execution. 

823.  Same — Of  personal  earnings,  etc. 

824.  Same — Of  pension  money. 

30 


§  792.]  EXECUTIONS   AND   EXEMPTIONS.  31 

825.  Of  insurance  money. 

826.  Same — Of  exemptions  to  unmarried  persons. 

827.  Same— Of  the  head  of  the  family. 

828.  Same — When  exemptions  not  allowed,  of  absconding,  etc. 

829.  Of  other   exemptions. 

830.  Of  waiver  of  right  of  exemption. 

831.  Of  securing  the  claims  of  laborers  of  insolvent  corporations, 

etc. 

832.  Of  depriving  persons  of  the  benefit  of  the  exemption  laws. 

833.  Of  exchange  of  exempt  property,  liens,  etc. 

834.  Of  construction  of  the  statute,  remedy,  etc. 

Section  792.  Within  what  time  an  execution  may 
issue. — An  execution  is  said  to  be  a  writ  directed  to  an 
officer  authorizing  him  to  carry  into  effect  the  judgment 
of  the  court,1  and  executions  may  issue  at  any  time  be- 
fore the  judgment  is  barred  by  the  statute  of  limitations, 
and  upon  judgments  in  the  district  and  supreme  courts 
into  any  county  which  the  party  ordering  may  direct, 
but  one  execution  can  be  in  existence  at  the  same  time 
on  the  same  judgment  or  order.2  An  execution  may 
issue  on  a  judgment  after  the  lien  thereof  on  land  has 
expired,  and  at  any  time  within  twenty  years,  and  a  sale 
of  real  estate  thereunder  will  pass  all  the  interest  of  the 
defendant  therein  at  the  time  of  the  levy.3 

If  there  is  no  valid  existing  judgment  when  the  execu- 
tion is  issued  it  is  void.4  And  a  subsequent  entry  of  a 
judgment  will  not  relate  back  so  as  to  legalize  an  execu- 
tion issued  when  no  judgment  had  been  entered.5 
An  execution  must  be  regarded  as  "in  existence"  until 
it  is  returned,  even  though  the  return  day  is  past;  and 
a  sale  under  a  second  execution  issued  before  the  first  is 
returned  will  be  set  aside  as  to  a  judgment  creditor  pur- 
chasing at  the  sale.6 

While  the  provision  of  the  statute  that  but  one  execu- 
tion can  be  in  existence  at  the  same  time  is  mandatory, 

1  Bouv.  Law  Die.  495.  *  Balm    v.    Nunn,    63-641,    and 

2  Code,     Sec.     3955;     Stahl     v.      cases  cited. 

Roo»t,  34-475;  Ayres  v.  Campbell,  8  Winter  v.  Coulthard,  62  N.  W., 

9-213.  732. 

3  Stahl  v.  Roost,  34-475.  e  Merritt  v.  Grover,  57-493,  and 

61-99. 


32  EXECUTIONS  AND  EXEMPTIONS.          [§  793. 

yet  sueh  provision  may  be  waived  by  the  party  for  whose 
benefit  it  was  enacted;  and  when  the  party  against  whom 
an  execution  was  issued  knew  that  another  execution 
was  in  existence  and  stood  by  and  made  no  objection  at 
the  sale  under  the  second  execution,  and,  at  the  expira- 
tion of  the  period  of  redemption,  surrendered  possession 
of  the  property  voluntarily,  he  could  not  afterward,  in 
the  absence  of  a  showing  that  the  land  sold  for  less  than 
its  value,  and  an  offer  on  his  part  to  pay  the  judgment, 
complain.7  The  mere  issuance  of  a  second  execution  be- 
fore the  return  of  the  first  under  which  a  levy  has  been 
made  will  not  of  itself  establish  an  abandonment  of  such 
levy.8  It  is  not  necessary  to  give  the  defendant  in  an 
execution  notice  of  its  issuance.9  A,JJ  execution  on  a 
judgment  in  justice's  court  on  a  transcript  which  is  not 
filed  in  the  office  of  the  clerk  of  the  district  court  can 
not  issue  after  ten  years.10  A  second  execution  should 
not  issue  until  the  levy  under  a  prior  one  has  been  dis- 
posed of.11  When  a  superior  court  has  been  abolished, 
executions  from  its  records  are  to  be  issued  by  the  clerk 
of  the  district  court,  under  the  seal  of  said  court.12 

Executions  should  only  issue  in  the  name  of  the  judg- 
ment creditor  or  his  assignee,  except  in  case  of  his  death, 
bankruptcy,  or  the  like.13 

§  793.  What  judgments  and  orders  are  enforce- 
able by  execution. — Judgments  and  orders  requiring 
the  payment  of  money  or  the  delivery  or  the  possession 
of  property  are  enforceable  by  execution,  and  obedience 
to  those  requiring  the  performance  of  other  acts  is  to  be 
coerced  by  attachment  for  contempt.14  A  court  of  law 
by  its  judgment  declares  the  conclusion  of  the  law  on 
the  facts  proved,  leaving  the  party  to  the  proper  process 
to  enforce  it;  it  grants  specific  relief  only  in  actions  in 

T  Merritt  v.  Grover,  61-99.  «  McWilliams  v.  Myers,  10-325. 

*  West  v.  St.  John,  63-287.  "  Code,  Sec.  277. 

»  Ayres  v.  Campbell,  9-213.  «  Cornell  v.  Doolittle,  2  G.  Gr., 

10  Givens     v.     Campbell,     20-79;  385;  McWilliams  v.  Myers,  10-325; 

Code,  Sec.  4539;   Walton  v.  Wray,  Meek  v.  Bunker.  33-169. 

54-531;  Woods  v.  Haviland,  59-476.  "  Code,  Sec.  3954. 


§§  79i,  795.]  EXECUTIONS   AND   EXEMPTIONS.  33 

rem,15  and  it  is  held  the  proper  method  of  enforcing 
obedience  to  a  continuing  order  in  the  nature  of  a  man- 
datory injunction  is  by  attachment  for  contempt.16 

Execution  can  not  be  issued  on  a  judgment  after  the 
death  of  the  defendant,17  and  in  such  a  case  the  judg- 
ment should  be  filed  as  a  claim  against  the  decedent's 
estate.18  Executions  may  be  recalled  by  the  court  when 
they  have  been  improperly  issued,  and  when  an  execu- 
tion is  allowed,  it  will  be  presumed  it  was  done  by  one 
authorized.19  An  order  to  pay  to  the  clerk  a  sum  of 
money  in  a  divorce  action  for  alimony  is  enforceable 
by  execution.20  For  a  discussion  of  the  issuance  of  a 
special  execution  for  the  sale  of  attached  property  refer- 
ence is  made  to  the  chapter  herein  on  attachments. 

§  794.  Into  what  counties  the  writ  may  .mn.— 
Executions  from  the  district  or  supreme  court  may  issue 
into  any  county  which  the  party  ordering  may  direct.21 
But  when  a  judgment  is  rendered  in  one  county  and  a 
transcript  filed  in  another,  execution  must  issue  from 
the  former  county  for  the  sale  of  land  in  the  latter,  and  a 
sale  made  under  an  execution  issued  in  the  latter  county 
is  invalid.22  But  execution  may  issue  from  the  county 
where  the  judgment  was  rendered  into  any  county  in  the 
State.23 

The  provision  of  the  statute  that  a  transcript  must 
be  filed  is  directory.24 

§  795.  When  issued  on  Sunday. — An  execution 
may  be  issued  and  executed  on  Sunday  when  an  affidavit 
is  filed  by  plaintiff,  or  some  person  in  his  behalf  stating 
that  he  believes  he  will  lose  his  judgment  unless  process 
issues  on  that  day.25  Such  affidavit  may  be  in  the  follow- 
ing form : 

is  Kramer  v.  Rebman,  9-114.  21  Code,  Sec.  3955. 

ie  State  v.  Baldwin,  57-266.  22  Furman     v.     Dewell,     35-170; 

IT  Welch  v.  Battern,  47-147;  see  Seaton  v.  Hamilton,   10-394. 
Sprott  v.  Reid,  3  G.  Gr.,  489.  23  Anderson  v.  Hall,  48-346. 

is  Bayless  v.  Powers,  62-601.  2*  Hubbard    v.     Barnes,     29-239; 

is  Mayfield    v.    Bennett,    48-194;  McGinnis   v.    Edgell,   39-419;     see 

Preston  v.  Wright,  60-351.  Foreman  v.  Higham,  35-382. 

20  Allen  v.  Allen,  72-502.  25  Code,  Sec.  3956. 

Vol.  II— 3 


34  EXECUTIONS   AND   EXEMPTIONS.          [§§  796,  797. 


FORM  OF   AFFIDAVIT    FOR   ISSUANCE   OF    EXECUTION   ON 

SUNDAY. 

Title,   ) 
Venue.  J 

State  of  ,     ) 

County.       j  5>i' 


I, ,  being  duly  sworn,  say:     That  on  the day  of 


18 — ,  I  obtained  a  judgment  in  the  district  court  in  and  for  said  county 
in  the  above  entitled  action  against  the  defendant  (or  plaintiff)  for 
dollars  debt  and dollars  costs,  which  remains  wholly  un- 
satisfied (or  as  the  case  may  be);  that  I  verily  believe  I  will  lose  my 
said  judgment  unless  an  execution  be  this  day,  Sunday,  issued  and  exe- 
cuted. 


(Add  certificate  of  officer.) 

§  796.  Of  the  issuance  of  the  writ  and  of  the  duty 
of  the  clerk. — When  a  judgment  is  rendered  the  clerk 
must,  on  demand  of  the  party  entitled  thereto,  at  once 
issue  an  execution,  and  at  the  same  time  enter  on  his 
judgment  docket  the  date  of  its  issuance,  and  to  what 
county  and  officer  issued.26 

§  797.  Of  the  requisites  of  the  writ  generally.— 
The  execution  must  intelligibly  refer  to  the  judgment, 
stating  the  time  and  place  at  which  it  was  rendered,  the 
names  of  the  parties  to  the  action,  and  to  the  judgment, 
its  amount,  and  the  amount  still  to  be  collected  thereon, 
if  for  money,  and  if  not  for  money  it  must  state  what 
act  is  to  be  performed,  and  if  against  the  property  of  a 
judgment  debtor,  it  should  require  the  sheriff  to  satisfy 
the  judgment  interest  and  costs  out  of  the  property  of  the 
debtor,  subject  to  execution  describing  such  property.27 

A  slight  variance  between  the  amount  stated  in  the 
execution  and  that  stated  in  the  judgment  will  not  viti- 
ate the  writ.28  Below  will  be  found  a  form  of  execution 
which  can  be  used  in  ordinary  cases. 

ae  Code,  Sec.  3957.  28  Williams    v.    Brown     28-247- 

*T  Code,  Sec.  3960.  see  Burdick  v.  Shigley,  30-63. 


§  797.  ]  EXECUTIONS    AND   EXEMPTIONS.  35 

GENERAL  FORM  OF  EXECUTION  FOR  MONEY. 

State  of  Iowa, 
To  the  sheriff  of county,  greeting: 

Whereas,  on  the  day  of  ,  A.  D.  18 — ,  judgment  was 

rendered  in  the  district  court  of county  against  (here  insert  names 

of  parties  against  whom  judgment  was  rendered)  for  the  sum  of 

dollars  debt  and dollars  cost  of  suit  at  the  suit  of  (here  insert  names 

of  parties  to  the  suit),  you  are  therefore  hereby  commanded  to  cause 
to  be  made  of  the  goods  and  chattels,  lands,  tenements  and  effects  of  the 
said  (name  of  party  against  whom  judgment  was  rendered),  in  your 
county,  subject  to  execution,  the  said  sum  with  interest  at  -  -  per 

cent,  per  annum  from  the day  of  ,  18 — ,  and  costs  in  the 

sum  of dollars,  and  accruing  costs  by  levy  and  sale  according  to 

law,  and  of  this  writ  make  legal  service  and  due  return  to  the  court  with- 
in seventy  days  from  the  date  hereof. 

Witness,  ,  clerk  of  said  court,  with  the  seal  thereof  hereto 

affixed  at ,  Iowa,  this day  of ,  18 — . 

[Seal.]  ,  clerk,  etc. 

If  the  execution  issue  against  real  or  personal  prop- 
erty in  the  hands  of  personal  representatives,  heirs,  devi- 
sees, legatees,  tenants  of  real  property,  or  trustees,  it 
must  require  the  sheriff  to  satisfy  the  judgment,  interest 
and  costs  out  of  such  property.29  It  must  not  be  levied 
on  exempt  property.30  A  lien  will  not  be  lost  because 
property  is  levied  on  and  sold  under  a  general  execution 
when  the  sale  should  have  been  made  under  a  special 
execution.31  When  the  remedy  will  be  exhausted.32  If 
it  issue  for  the  delivery  of  possession  of  real  or  per- 
sonal property,  it  must  require  the  sheriff  to  deliver 
the  possession  of  the  same,  particularly  describing  it, 
to  the  party  entitled  thereto,  and  may  at  the  same  time 
require  the  sheriff  to  satisfy  any  costs,  damages,  or  rents 
and  profits,  with  interest,  recovered,  by  the  same  judg- 
ment, out  of  the  property  of  the  party  against  whom  it 
was  rendered,  subject  to  execution,  and  the  value  of  the 
property  for  which  judgment  was  recovered  must  be 
specified  therein,  if  a  delivery  thereof  can  not  be  had,  and 
it  shall  in  that  respect  be  regarded  as  an  execution 

29  Code,  Sec.  3961.  si  Valley  Nat.  Bk.  v.  Jackaway, 

so  Nix  v.  Goodhile,  63  N.  W.,  701.      80-512. 

32  Bevans  v.  Dewey,  82-85. 


-36  EXECUTIOXS  AND  EXEMPTIONS.  [§  798. 

.-against  property.33  And  when  it  requires  the  perform- 
.ance  of  any  other  act,  a  certified  copy  of  the  judgment 
irnay  be  served  on  the  person  against  whom  it  is  rendered, 
>or  upon  the  person  or  officer  who  is  required  thereby,  or 
tby  law,  to  obey  the  same,  and  his  obedience  thereto  en- 
forced.34 

An  execution  which  sufficiently  describes  and  identi- 
fies the  judgment  so  as  to  render  certain  the  authority 
on  which  it  was  issued  invests  the  officer  w^ith  power  to 
levy  and  sell,35  and  slight  defects  in  the  execution  will 
not  render  it  invalid.36 

§  798.  Of  proceedings  when  writ  is  issued  to  an- 
other county. — In  case  an  execution  is  issued  to  a 
county  other  than  that  in  which  the  judgment  is  ren- 
dered, and  is  levied  upon  real  estate  in  such  county,  a 
transcript  of  such  judgment  must  be  filed  in  the  office 
of  the  clerk  of  the  district  court  of  said  county,  who  must 
make  an  entry  thereof  in  the  judgment  docket  of  said 
court,  and  the  officer  making  the  levy  must  make  an 
entry  thereof  upon  the  incumbrance  book  showing  the 
same  particulars1  required  in  case  of  an  attachment  of 
real  estate,  which  will  be  bound  from  the  time  of  such 
entry.37  But  it  seems  that  an  execution  may  issue  into 
any  county  and  a  valid  sale  of  the  property  be  made  as 
between  the  parties  and  subsequent  purchasers  having 
actual  notice,  notwithstanding  no  transcript  of  the  judg- 
ment is  filed  in  the  county  where  the  land  is  situated 
which  is  sold.3£  The  provision  of  the  statute  requiring 
transcript  to  be  filed  in  the  foreign  county  is  directory, 
but  in  the  absence  of  actual  notice  the  proceedings  of 
levy  and  sale,  where  such  transcript  is  not  filed,  will  not 
impart  constructive  notice  to  the  purchaser  prior  to  the 
filing  of  the  sheriff's  deed.39  But  the  deedz  when  record- 
as  Code,  Sec.  3962.  Dean  v.  Goddard,  13-292;  Williams 

34  Code   Sec.  3963.  v.  Brown,  28-247;   Cunningham  v. 

35  Dean     v.     Goddard,      13-292;      Felker,  26-117. 
Sprott  v.  Reid,  3  G.  Gr.,  489;  Shel-          ^  Code,  Sec.  3958. 

don  v.  Van  Buskirk,  2  Comst,  473;          ™  Hubbard     v.     Barnes,     29-239, 

Elliott     v.     Cronk's     Adm'rs,     13  and  see  cases  cited  under  No.  40. 
"Wend.,  35.  39  Hubbard    v.    Barnes,    29-239; 

secooley     v.     Brayton,     16-10;  McGinnis  v.  Edgell,  39-419;   Fore- 


§  799.]          EXECUTIONS  AND  EXEMPTIONS.  37 

ed,  will  be  constructive  notice  of  the  title  to  a  purchaser; 
the  purpose  of  filing  a  transcript  is  only  to  make  the  judg- 
ment a  lien.40  The  powers  of  the  clerk  are  only  such  as 
are  given  in  this  section;  he  cannot  receive  payment  of 
the  judgment  nor  satisfy  it41 

§  799.  Of  forms  of  executions. — Below  will  be  found 
several  forms  of  executions  in  addition  to  the  general 
form  heretofore  given.  It  will  be  observed  that  no  par- 
ticular form  of  words  need  be  used.  All  that  is  required 
is  that  the  execution  in  each  case  contains  sufficient 
to  comply  with  the  statutory  requirements  heretofore 
stated: 

FORM  OF  EXECUTION  FOR  THE  DELIVERY  OF  SPECIFIC 
CHATTELS. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas,  on  the  —     —  day  of  —    — ,  A.  D.  18—,  by  the  judgment  of 

the  district  court  held  at  the  court  house  in  —      —  in  said  county, 

recovered  against  —  —  the  possession  of  the  following  described  per- 
sonal property,  to-wit:  (here  describe  the  property)  or  in  case  a  deliv- 
ery thereof  can  not  be  had  then  for dollars,  the  value  thereof  duly 

assessed,  and  also  (here  state  any  other  sums  recovered  as  damages, 
costs,  etc.)  in  a  certain  action  then  pending  in  said  court  wherein  the 
said  —  —  was  plaintiff  and  the  said  —  —  was  defendant,  which  said 
judgment  remains  in  full  force  and  unsatisfied.  You  are  therefore  com- 
manded that  you  cause  the  above  described  property  forthwith  ta 

be  delivered  to  the  said ,  and  that  you  cause  to  be  made  of  the 

goods  and  chattels,  lands  and  tenements  of  the  said  ,  subject  ta 

execution  in  your  county,  the  sum  of dollars  damages  and 

dollars  costs  of  said  action  together  with  all  the  legal  costs  that  may 
accrue  by  virtue  of  this  writ,  with  legal  interest,  and  also  in  case  a 
delivery  of  said  property  can  not  be  had,  that  you  cause  to  be  made,  as 

aforesaid,  the  further  sum  of  — dollars  with  interest  thereon  from 

the  —  —  day  of  —  —  A.  D.  18 — ,  and  have  you  said  moneys,  etc.  (a» 
in  form  of  general  execution  heretofore  given). 

FORM  OF  EXECUTION  ON  TRANSCRIPT  OF  JUDGMENT  FROM  A 
JUSTICE  OF  THE  PEACE. 

The   State  of  Iowa. 
To  the  sheriff  of  said  county,  greeting: 

Whereas,  on  the day  of  ,  A.  D.  18 — ,  a  duly  certified 

transcript  of  a  judgment  from  the  docket  of ,  a  justice  of  the  peace 

man  v.  Highan,  35-382;   see  Code,  14-400;    Hendershott   v.   Ping,   24- 

Sec.  3958.  134. 

40  Foreman    v.    Highan,    35-382;  *i  Hawkeye  Ins.  Co.  v.  Luckow, 

Code,   Sec.    3802;     see   Lathrop    v.  76-21. 
Brown,    23-40;    Blaney   v.    Hanks, 


38  EXECUTIONS   AND   EXEMPTIONS.  [§  SCO. 

of county,  was  filed  in  the  office  of  the  clerk  of  the  district  court 

of  said  county,  and  a  memorandum  thereof  was  entered  on  the  judgment 
docket  of  said  court,  and  whereas  it  appears  from  the  transcript  that 

did  on  the day  of ,  A.  D.  18 — ,  recover  a  judgment 

against ,  for  the  sum  of  dollars  and  costs  of  suit,  before 

— ,  justice  of  the  peace.  You  are  therefore  hereby  commanded,  etc. 
(as  in  form  of  general  execution  heretofore  given). 

(For  form  of  execution  in  case  of  sale  of  real  estate  under  mortgage- 
foreclosure  reference  is  made  to  the  chapter  on  mortgages.) 

§  800.    When  a  stay  of  execution  is  allowed.  — On 

all  judgments  for  the  recovery  of  money,  except  those 
rendered  in  any  court  on  appeal,  or  writ  of  error  thereto, 
or  in  favor  of  a  laborer  or  mechanic  for  his  wages,  or 
against  one  who  is  surety  in  the  stay  of  execution,  or 
against  any  officer,  person  or  corporation,  or  the  sureties 
of  any  of  them,  for  money  received  in  a  fiduciary  capac- 
ity, or  for  the  breach  of  any  official  duty,  there  may  be  a 
stay  of  execution,  if  the  defendant  therein  shall,  within 
ten  days  from  the  entry  of  judgment,  procure  one  or  more 
sufficient  freehold  sureties  to  enter  into  a  bond  acknowl- 
edging themselves  security  for  the  defendant  for  the 
payment  of  the  judgment,  interest  and  costs  from  the 
time  of  rendering  the  judgment  until  it  is  paid.  If  the 
sum  for  which  judgment  was  rendered,  inclusive  of  cost, 
does  not  exceed  one  hundred  dollars,  execution  may  be 
staj-ed  for  three  months;  if  such  sum  and  costs  exceeds 
one  hundred  dollars,  it  may  be  stayed  six  months.42 

A  subsequent  purchaser  of  mortgaged  property,  who 
has  assumed  as  between  himself  and  the  mortgagor,  the 
payment  of  the  mortgaged  debt,  and  who  is  a  co-defend- 
ant with  the  mortgagor  in  an  action  to  foreclose  the  mort- 
gage, may,  without  the  mortgagor's  consent,  stay  the 
execution  on  the  judgment  of  foreclosure.43  And  a  stay 
of  execution  properly  taken,  is  not  rendered  invalid  by 
the  failure  of  the  clerk  to  require  the  sureties  to  justify.44 

The  provisions  of  the  stay  law  are  general,  and  apply 
to  justices'  courts  as  well  as  courts  of  record,45  and  it 

«  Code,  Sec.  3996.  **  Du  Bois  v.  Bloom,  38-512. 

43  Moses  v.  The  Clerk,  etc.,  12-          *s  Brown  v.  Markley,  58-689. 
139. 


§§  801,  802.]  EXECUTIONS   AND   EXEMPTIONS.  39 

seems  that  any  one  may  stay  a  judgment  who,  being  a 
party  to  the  proceeding,  has  such  an  interest  as  that  in 
equity  as  between  him  and  the  judgment  debtor,  he  may 
be  compelled  to  pay  the  debt.46  But  no  stay  is  allowed  on 
a  judgment  rendered  against  one  who  is  a  surety  in  a  stay 
of  execution,  nor  to  a  judgment  obtained  by  a  laboring 
man  or  mechanic  for  his  wages;  nor  will  an  appeal  be 
allowed  after  stay  is  taken,  it  being  a  waiver  of  a  right 
to  appeal.47  The  time  of  the  stay  begins  to  run  from  the 
time  the  judgment  is  rendered.48 

§  801.  Of  debts  contracted  prior  to  September  1, 
1873. — The  provisions  -of  the  existing  law  relating  to 
stay  of  executions  do  not  apply  to  contracts  made  prior 
to  September  1,  1873,  such  contracts  being  governed  by 
the  law  in  force  at  the  time  they  were  made.49 

§  802.  Of  stay  bonds  and  their  approval. — The 
surety  for  a  stay  of  execution  may  be  taken  and  approved 
by  the  clerk,  and  the  bond  must  be  recorded  in  a  book 
kept  for  that  purpose,  and  will  have  the  force  and  effect 
of  a  judgment  confessed,  from  the  date  thereof,  against 
the  property  of  the  sureties,  and  the  clerk  must  enter 
and  index  the  same  in  the  proper  judgment  docket.50 
Unless  the  surety  objects,  and  such  objection  appears 
of  record,  he  will  be  presumed  to  have  consented  to  the 
stay,  and  thereby  waived  the  right  to  redeem  his  prop- 
erty, if  sold  under  execution.51  The  right  of  trial  is 
waived  by  executing  a  bond.52  Officers  approving  stay 
bonds,  unless  waived  in  writing,  by  the  party  in  whose 
favor  the  judgment  is  rendered,  must  require  the  affida- 
vits of  the  signers  of  such  bond  to  the  effect  that  they 
own  real  estate,  not  exempt  from  execution,  and  exclu- 
sive of  incumbrances,  to  the  value  of  twice  the  amount 
of  the  judgment.53  The  act  of  the  clerk  in  passing  upon 

46  Moses  v.  The  Clerk,  etc.,  12-         eo  Code,  Sec.  3999. 
139.  BI  Chase  v.  Wilty,  57-230. 

*i  Code,    Sec.    3998;     Seacrist  v.         »2  Cavender  v.   Heirs  of  Smith, 
jSfi-vvman,  19-323.  5-157. 

«  Okey  v.  Sigler,  82-94.  os  Code,  Sec.  3997. 

49  Code,   Sec.   3996;    Revision  of 
1860,  Sec.  3293. 


40  EXECUTIONS  AND  EXEMPTIONS.          [§  802. 

the  sufficiency  of  a  stay  bond  is  not  judicial,  and  he  is 
liable  for  any  damage  sustained  by  the  judgment  cred- 
itor by  reason  of  his  negligence  in  accepting  an  insuffi- 
cient bond,  and  taking  the  affidavit  of  the  surety  will  not 
exonerate  the  clerk  from  liability.54  Where  a  stay  bond 
has  been  taken  and  filed  with  the  clerk,  and  was  lost,  and 
no  entry  with  reference  thereto  made  on  the  records  of 
the  court,  it  was  held  it  did  not  become  a  lien  upon  the 
property  of  the  surety,  as  against  subsequent  incum- 
brances,  without  actual  notice.55 

Parol  evidence  is  not  admissible  to  prove  that  a  stay 
bond  was  not  filed  at  the  time  stated  in  the  record.56 
Even  when  a  stay  bond  is  accepted  and  approved,  in  a 
case  in  which  the  debtor  is  not  entitled  to  a  stay  of  exe- 
cution, it  is  nevertheless  a  lien  on  the  land  owned  by  the 
surety,  the  clerk's  action  in  accepting  or  approving  such 
bonds  not  being  subject  to  review  in  a  collateral  pro- 
ceeding.57 The  right  of  action  against  the  clerk  for  dam- 
ages arising  from  his  fault  in  approving  a  stay  bond  does 
not  accrue  until  the  expiration  of  the  stay,  and  the  right 
of  action  of  the  clerk  against  his  deputy  for  a  like  fault 
arises  at  the  same  time,  and  it  is  no  defense  for  the  dep- 
uty that  the  principal  had  previously  approved  bonds 
signed  by  the  same  surety.58  The  determination  of  the 
clerk  as  to  wrhether  a  stay  bond  is  filed  witliin  the  time 
required  by  law,  or  whether  the  filing  of  it  is  essential  to 
its  validity,  is  a  judicial  act,  and  an  error  in  such  a  case 
will  render  the  judgment  voidable,  not  void.59  Bond  for 
stay  of  execution  in  any  case  may  be  in  the  following 
form: 

•    FORM  OF  STAY  BOND. 
Title,    ) 
Venue.   J 

We  hereby  acknowledge  ourselves  security  for  the  defendant  herein 
for  the  payment  of  the  judgment,  costs  and  interest  thereon,  rendered  by 
the  district  court  of  Iowa  in  and  for county,  in  the  above  entitled 

siHubbard    v.     Switzer,  47-681;          "  Wishard  v.  Biddle,  64-526;  see 
see  Moore  v.  McKinley,  60-367.  Maynes  v.  Brockway,  55-457. 

as  Waldron  v.  Dickerson,  52-171.          ss Moore     v.     McKinley,     60-367, 
cs  Maynes  v.  Brockway,  55-457.          and  cases  cited. 

59  Maynes  v.  Brockway,  55-457. 


§  803.  ]          EXECUTIONS  AND  EXEMPTIONS.  41 

action,  on  the day  of ,  18 — ,  against  said  defendant,  for  the 

purpose  of  a  stay  of  execution  thereon  for  —  -  months,  and  to  that 
end  we  hereby  undertake  and  promise  to  pay  the  said  judgment,  inter- 
est, costs  and  accruing  costs,  at  or  before  the  expiration  of  the  said  term 
of  the  stay  of  execution,  and  upon  the  expiration  of  said  term 
we  hereby  authorize  and  empower  the  clerk  of  said  court  to  issue  execu- 
tion against  us  as  provided  by  law. 

Dated  this day  of ,  18—. 


And  the  affidavit  required  by  statute  may  be  in  the 
following  form: 

FORM  OF  AFFIDAVIT  OF  JUSTIFICATION  BY  SURETIES. 

State  of  Iowa,  ) 
—  County.  [ 

I, ,  do  solemnly  swear  that  I  am  a  resident  and  a  freeholder  of 

the  State  of  Iowa,  and  am  worth  the  sum  of dollars  beyond  the 

amount  of  my  debts  and  have  property  liable  to  execution  in  this  State 
equal  to  the  sum  of dollars. 


(Must  be  sworn  to.) 

Where  there  are  two  or  more  sureties  they  may  each 
make  a  separate  justification  for  an  amount  which  in 
the  aggregate  will  be  sufficient,  or  they  may  justify  to- 
gether and  the  above  form  can  be  changed  accordingly. 

This  bond  must  be  approved  by  the  clerk  by  making 
the  proper  indorsement  thereon. 

§  803.  Effect  of  stay  after  execution  has  been 
issued — The  bond. — When  the  stay  is  taken  after  exe- 
cution has  issued,  and  the  clerk  has  accepted  and  ap- 
proved the  bond,  he  must  immediately  notify  the  sheriff 
of  the  stay,  who  must  forthwith  return  the  execution 
with  his  doings  thereon.60 

And  all  property  levied  on  before  stay  of  execution 
and  all  written  undertakings  for  the  delivery  of  personal 
property  to  the  sheriff  must  be  relinquished  by  the  offi- 
cer upon  stay  of  execution  being  entered.61  The  giving 
of  the  bond  will  not  release  any  judgment  lien  by  virtue 

so  Code,  Sec.  4000.  ei  Code,  Sec.  4001. 


42  EXECUTIONS  AND  EXEMPTIONS.          [§  804. 

of  the  original  judgment  for  the  amount  then  due.02 
Some  courts  have  held  that  a  judgment  and  its  legal  in- 
cidents can  not  be  affected  by  an  antecedent  or  contem- 
poraneous, independent,  collateral  agreement  to  stay 
execution.63 

§  804.  Of  sureties  preventing  or  determining  the 
stay  of  execution. — At  the  expiration  of  the  stay  the 
clerk  must  issue  a  joint  execution  against  the  property 
of  all  the  judgment  debtors  and  sureties,  describing  them 
as  debtors  or  sureties  in  the  writ;  the  liabilities  of  such 
sureties  will  be  subject  to  that  of  their  principal.04  But 
a  delay  in  issuing  the  execution  after  expiration  of  the 
stay,  will  not  discharge  the  lien  of  the  judgment.65  The 
sheriff  must  return  on  the  execution  what  amount  is 
made  from  the  principal  debtor  and  what  amount  from 
the  sureties.66  When  any  court  renders  judgment  against 
two  or  more  persons,  any  one  of  whom  is  surety  for  any 
other  in  the  contract  on  which  the  judgment  is  founded, 
there  will  be  no  stay  of  execution  allowed,  if  the  surety 
objects  thereto  at  or  before  the  time  of  rendering  the 
judgment;  and  if  such  objection  is  made,  the  court  will 
order  that  no  stay  be  allowed  unless  the  surety  for  the 
stay  of  execution  will  undertake  specifically  to  pay  the 
judgment  in  case  the  amount  thereof  can  not  be  col- 
lected from  a  principal  defendant,  and  the  judgment 
must  recite  that  the  liability  of  such  stay  is  prior  to  that 
of  the  objecting  surety.67  Any  surety  for  the  stay  of 
execution  may  file  with  the  clerk  an  affidavit  stating 
that  he  verily  believes  he  will  be  compelled  to  pay  the 
judgment,  interest  and  costs  thereon,  unless  execution 
issues  immediately,  and  if  he  gives  notice  thereof  in  writ- 
ing to  the  party  for  whom  he  is  surety,  the  clerk  must 
thereupon  issue  execution  forthwith,  unless  other  suffi- 
cient surety  is  given  within  five  days  after  such  notice  is 

62  Code,  Sees.  3999,  4006.  es  Parish  v.  Elwell,  46-162,  and 

ss  Woolworth     v.     Drinker,     11  cases  cited. 

Ohio  St.,  593;  Fullam  v.  Valentine,  ee  Code,  Sec.  3966. 

11  Pick.,  156;  see  Tousey  v.  Bish-  e-  Code,  Sec.  4003;    see  Okey  v. 

op,  22-178.  Sigler,  82-94. 

6*  Code,  Sec.  4002. 


§  805.  ]          EXECUTIONS  AND  EXEMPTIONS.  43 

given.68  If  other  sufficient  surety  is  given  it  will  have 
the  force  and  effect  of  the  original  surety  entered  before 
the  filing  of  the  affidavit,  and  will  discharge  the  original 
surety.09 

§  805.  Duty  of  sheriff  on  receiving  execution.— 
When  the  sheriff  receives  an  execution  he  must  receipt 
for  it  if  required,  stating  the  hour  when  the  same  was 
received,  and  must  make  sufficient  return  thereof,  to- 
gether with  the  money  collected,  on  or  before  the  seven- 
tieth day  from  the  date  of  its  issuance.70  And  he  must 
indorse  thereon  the  day  and  hour  when  he  received  it, 
and  the  levy  sale,  or  other  acts  done  by  virtue  thereof, 
with  the  date  and  dates  and  amounts  of  any  receipts  or 
payments  in  satisfaction  thereof,  and  these  indorsements 
must  be  made  at  the  time  of  the  receipt  or  acts  done.71 
But  a  failure  to  return  the  execution  within  the  seventy 
days  does  not  render  the  officer  liable  to  damages  unless 
special  injury  is  alleged  and  proved.72 

And  it  has  been  held  that  the  failure  of  the  sheriff 
to  make  return  for  the  year  during  which  redemption 
was  allowed  did  not  render  the  sale  void.73  Sales  made 
after  the  expiration  of  the  seventy  days  are  good  if  the 
levy  was  made  when  the  execution  was  alive.74  And 
sales  made  on  justices'  executions  are  good  though  made 
after  the  seventy  days  if  the  levy  was  made  within  that 
time.75  If  the  execution  is  lost  it  would  seem  that  the 
return  might  be  made  on  a  copy,  but  unless  the  fact  of 
such  loss  or  destruction  be  shown  by  the  return,  a  return 
made  on  a  copy  could  not  be  introduced  in  evidence,  nor 
could  the  return  be  explained  by  parol  unless  it  is  shown 
that  the  execution  has  issued  and  a  levy  been  made  there- 
under and  the  execution  has  been  lost  and  can  not  be 
produced.76  If  the  right  of  the  sheriff  to  subject  the 

es  Code,  Sec.  4004.  74  Stein    v.     Chambless,     18-474; 

69  Code,  Sec.  4005.  Mooney  v.  Mass,  22-380;  Childs  v. 

TO  Code,  Sec.  3964.  McChesney,  20-431;     Butterfield   v. 

71  Code,  Sec.  3965.  Walsh,  21-97;  Thorington  v.  Allen, 

72Musser    v.    Maynard,  55-197,      21-291;    Wright  v.   Howell,  35-288. 

and  cases  cited.  75  Walton  v.   Wray,   54-531. 

TS  Cooper  v.  French,  52-531.  ?o  West  v.  St.  John,  63-287;  Code, 


4-4  EXECUTIONS  AND  EXEMPTIONS.          [§  806. 

property  levied  on  to  the  satisfaction  of  the  execution 
is  contested  by  an  action  of  replevin,  he  should  not  make 
any  return  of  the  execution  until  the  final  disposition  of 
the  replevin  suit.77  A  statement  in  the  return  of  an 
execution  which  is  entered  on  the  judgment  record  and 
which  recites  acts  of  a  person  other  than  the  officer,  is 
without  authority  and  can  not  be  relied  on  by  a  subse- 
quent incumbrancer.78  If  the  sale  is  treated  as  a  nullity 
by  the  parties,  parol  evidence  is  receivable  to  show  that 
it  never  was  completed.  Irregularities  in  the  officer's 
return  will  not  ordinarily  prejudice  a  purchaser  at  the 
sale.79  Matters  not  recited  in  the  return  may  be  shown 
by  parol  testimony.80 

§  806.  Same — When  against  principal  and  surety. 
— The  clerk  issuing  an  execution  on  a  judgment  against 
principal  and  surety,  must  state  therein  the  order  of  lia- 
bility recited  in  the  judgment,  and  the  officer  serving  it 
must  exhaust  the  property  of  the  principal  first,  and  of 
the  other  defendants  in  the  order  of  liability  thus 
stated.81  But  this  only  applies  when  judgment  has  been 
obtained  against  both  principal  and  surety,  and  not  then 
unless  the  order  of  liability  is  stated  in  the  judgment.82 
And  one  of  two  joint  judgment  debtors  can  not  compel 
the  creditor  to  resort  to  the  other  first  unless  so  directed 
in  the  judgment.83  The  term  surety,  as  herein  used, 
embraces  accommodation  indorsers,  stayers,  and  all 
other  persons  whose  liability  on  the  claim  is  posterior 
to  that  of  another;  but  the  surety  must,  if  required  by 
the  officer,  show  property  of  the  principal  to  entitle  him 
to  the  benefit  of  these  provisions  of  the  statute.84  And 
all  the  parties,  in  all  cases,  will  be  considered  as  equally 
liable  unless  the  order  of  liability  is  shown  to  the  court 

Sec.  3968;   Flannigan  v.  Althouse,  Gr.,  385;  Humphry  v.  Beeson,  1  G. 

56-513;    Le  Barren  v.   Taylor,  53-  .Gr.,   199. 

637.  80  Smith  v.  De  Kock,  81-535. 

77  Cox  v.  Currier.  62-551.  »i  Code,   Sec.   3966;    Bockholt   v. 

TS  Aultman  v.  McGrady,  58-118.  Kraft,  78-661. 

79  Winnebago  County  v.  Brones,  82  Palmer  v.  Stacy,  44-340. 

68-682;    Hopping  v.  Burnam,  2  G.  83  Palmer  v.  Stacy,  44-340. 

Gr.,  39;   Corriell  v.  Doolittle,  2  G.  84  Code,  Sec.  3966. 


§807.]  EXECUTIONS   AND   EXEMPTIONS.  45 

and  recited  in  the  judgment;  and  the  clerk  issuing  exe- 
cution on  the  judgment  containing  such  recital  must 
set  out  such  order  of  liability  therein,  and  the  officer 
holding  the  execution  must  show  in  his  return  the 
amount  collected  from  the  principal  and  from  the 
surety.85  After  exhausting  the  property  of  the  princi- 
pal the  officer  must  subject  the  property  of  the  other 
parties  in  the  order  of  their  liability  in  the  execution. 
But  the  party  subsequently  liable  must,  if  requested  by 
the  officer,  show  property  of  the  party  liable  before  him 
to  entitle  himself  to  the  benefit  of  the  provisions  of  the 
statute  heretofore  mentioned.80  Any  act  of  the  creditor 
which  entitles  the  principal  to  claim  for  any  time  an 
exemption  from  performance,  will  work  a  discharge  of 
the  surety;  but  if  time  is  given  the  principal  wTith  the 
consent  of  the  surety,  it  will  not  operate  as  a  discharge, 
nor  will  it  when  the  surety  ratifies  such  act.87  And  this 
is  true  after  the  contract  has  passed  into  a  judgment.88 
A  judgment  defendant  who  is  a  surety  for  his  co-defend- 
ant has  such  an  interest  against  his  co-defend,ant  that 
he  may  show  property  of  his  principal  which  is  subject 
to  execution  for  his  debts.89  In  an  action  at  law  on  a 
note  against  principal  and  surety,  when  the  surety  pleads 
his  suretyship  and  asks  judgment  accordingly,  plaintiff 
may  dismiss  as  to  the  principal  and  pursue  the  surety 
alone;  as  to  plaintiff  both  are  principals.90 

§  807,  Of  the  levy  of  the  execution. — After  the 
officer  receives  an  execution  it  is  his  duty  to  proceed  to 
execute  it  with  diligence,  and  in  doing  so  an  exact  de- 
scription of  the  property  at  length,  with  the  date  of  the 
levy,  must  be  indorsed  on  or  appended  to  the  execution; 
if  it  is  not  executed,  or  is  executed  in  part  only,  the  rea- 
son therefor  must  be  set  out  in  the  return.91  And  the 

ss  Code,  Sec.  3966;   see  State  v.         ss  Hershler  v.  Reynolds,  22-153; 
McGlothlin,     61-312;     Walters     v.      Chambers  v.  Cochran,  18-159. 
Wood,  61-290.  89  Delevan  v.  Pratt,  19-429. 

se  Code,  Sec.  3966.  so  Dorothy  v.  Hicks,  63-240. 

ST  Hershler  v.  Reynolds,  22-153.         »i  Code,  Sec.  3968;   Citizens  Nat. 

Bk.  v.  Loomis,  69  N.  W.,  443. 


46  EXECUTIONS  AND  EXEMPTIONS.  [§  808. 

officer's  return  indorsed  on  the  writ  is  the  best  and  gen- 
erally the  only  evidence  as  to  what  property  is  covered 
by  the  levy.92  If  it  is  shown  that  the  execution  and  re- 
turn are  lost,  then  parol  evidence  is  admissible  to  show 
the  contents  of  the  return,  but  for  no  other  purpose.93 
Sales  made  under  levies  not  in  compliance  with  the  statu- 
tory requirements  are  void.94  Where  an  officer  levied  an 
execution  on  standing  corn  by  going  into  the  field  for 
that  purpose  and  notifying  persons  interested  that  he 
had  made  the  levy,  it  was  held  a  good  levy  as  against 
such  persons,  and  it  was  not  necessary  to  keep  a  guard 
over  the  field  to  maintain  the  levy.95  A  levy  on  a  safe 
which  is  locked  and  its  contents  described  in  the  return 
as  "Notes  and  money  and  books,"  is  a  good  levy  on  notes 
payable  to  the  execution  defendant  and  contained  there- 
in.96 When  the  writ  is  sent  into  another  county  than 
that  in  which  the  judgment  was  rendered,  return  may 
be  made  by  mail,  but  money  can  not  be  thus  sent  except 
by  direction  of  the  party  entitled  to  it,  or  his  attorney.97 
The  mortgagor  of  chattels  in  possession  for  a  definite 
time  may  have  his  interest  therein  levied  on  before  the 
expiration  of  such  period.98  A  leasehold  interest  may  be 
levied  on.99  And  so  may  an  equitable  interest  in  real 
property,1  and  so  may  property  intended  for  a  special 
use.2 

§  808.  When  sheriff  dies  or  goes  out  of  office. — In 
case  the  sheriff  dies  or  goes  out  of  office  before  return- 
ing the  execution,  his  successor,  or  other  officer  author- 
ized to  discharge  his  duties  in  such  a  case,  the  coroner, 
may  proceed  in  the  same  manner  thereon  that  the  sheriff 
should  have  done.3 

And  the  sureties  on  the  official  bond  of  the  coroner  are 
liable  for  his  acts  while  he  is  acting  as  sheriff  ex  officio.4 

92  Flannigan  v.  Althouse,  56-513.  9s  Rindskoff  v.  Lyman,  16-260. 

»3  LeBarron  v.  Taylor,  53-636.  »»  Sweezy  v.  Jones,  65-272. 
9*  Payne  v.  Billingham,  10-360.  i  Lippencott  v.  Wilson,   40-425. 

as  Barr  v.  Cannon,  69-20;   Stuart  2  Coffey  v.  Wilson,  65-270. 

v.  Phelps,  39-14.  3  Code,  Sec.  506. 

as  Smith  v.  Clark,  69  N.  W.,  1011.  *  Tieman  v.  Haw,  49-312. 

97  Code,  Sec.  3959. 


§  809.]  EXECUTIONS   AND   EXEMPTIONS.  47 

§  809.  How  the  levy  is  made. — The  officer  must 
execute  the  writ  promptly  by  levying  on  the  property 
of  the  judgment  debtor,  collecting  the  things  in  action 
by  suit  in  his  own  name,  if  necessary,  or  by  selling  the 
same  and  the  other  property  and  paying  to  the  clerk  or 
the  plaintiff  the  proceeds  or  so  much  thereof  as  will  sat- 
isfy the  execution,  he  may  retain  his  own  costs  on  re- 
ceipting therefor  on  the  judgment  docket.5  And  by  the 
term  property,  is  meant  real  as  well  as  personal  prop- 
erty.6 A  judgment  creditor  may  elect,  but  is  not  com- 
pelled to  take  in  payment  of  his  debt,  script,  or  the  ordi- 
nary evidence  of  indebtedness  issued  by  a  corporation.7 
There  must  be  a  levy  on,  or  a  seizure  of  the  property,8 
and  to  be  a  sufficient  levy,  it  must  describe  the  property 
taken  with  such  certainty  as  to  enable  the  successor  of 
the  sheriff,  if  one  should  be  appointed,  or  the  purchaser 
at  the  sale,  to  find  and  identify  it.9  To  make  a  valid  levy 
on  personal  property,  the  officer  must  take  or  have  it 
within  his  power  or  control,  or  at  least  within  his  view, 
and  if  so  having  it,  he  makes  a  levy  upon  it,  it  will  be  good 
if  followed  up,  in  a  reasonable  time,  by  his  taking  pos- 
session of  the  property  in  such  a  manner  as  to  apprise 
the  world  of  its  having  been  levied  on.10  And  he  may 
take  possession  by  placing  the  property  in  the  control  or 
possession  of  some  third  person,  but  if  left  in  the  posses- 
sion and  custody  of  the  defendant,  the  levy  will  not  be 
-good.11  The  officer  must  in  all  cases  select  such  prop- 
erty, and  in  such  quantity,  as  will  be  likely  to  bring  the 
amount  required  to  be  raised  as  nearly  as  practicable, 
and  having  made  one  levy,  may  afterward  make  other 
levies,  if  he  finds  it  necessary,  but  no  writ  of  execution 
is  a  lien  on  personal  property  until  the  actual  levy 
thereon.12  The  officer  levying  the  writ  is  held  to  the 

s  Code,  Sec.  3969;     Hawkeye   v.  387;  Rix  v.  Silknitter,  57-262;  Bor- 

Diddy,  84-634;    Stuart    v.    Trotter,  der  v.  Benge,  12-330. 

75-96.  11  Kingsberry   v.   Buchanan,   11- 

e  Harrison  v.  Kramer,  3-543.  387;     Rix     v.     Silknitter,     57-262; 

t  Oswald  v.  Thedinga,  17-13.  Techmeyer  v.  Waltz,,  49-645. 

sDownard  v.  Crenshaw,  49-296.  12  Code,  Sec.  3970;  Reeves  v.  Se- 

»  Payne  v.  Billingham,  10-360.  brun,  16-234. 
10  Kingsberry   v.   Buchanan,   11- 


48  EXECUTIONS  AND  EXEMPTIONS.          [§  810. 

exercise  of  ordinary  care  in  the  preservation  of  the  prop- 
erty levied  on,  while  it  remains  in  his  hands  or  under  his 
control.13  When  the  levy  is  excessive  the  sale  will  be 
set  aside  even  though  the  whole  property  sold  has  been 
previously  attached  in  the  same  action.14  The  mere 
noting  the  fact  of  a  levy  on  personal  property  without 
taking  and  keeping  possession  of  it,  is  not  a  levy  suffi- 
cient to  create  a  lien.15  A  levy  on  a  growing  crop  is  not 
valid  as  against  after-acquired  liens,  if  made  so  long 
before  the  officer  can  properly  proceed  to  advertise  and 
sell  it,  as  to  evince  an  intention  on  the  part  of  the  judg- 
ment creditors  to  hold  the  levy  for  the  time  being  merely 
as  a  security;  and,  indeed,  the  tendency  of  our  court 
seems  to  be  to  hold  that  immature  growing  crops  can 
not  be  levied  on  and  sold.16  For  a  failure  to  perform  his 
duty  the  officer  is  liable  if  it  appear  that  the  property 
levied  on  belonged  to  the  execution  defendant,  was  sub- 
ject to  levy  and  was  lost  because  of  the  officer's  negli- 
gence.17 

§  810,  Of  levying  on  judgments,  bank  bills,  etc.— 
Judgments,  bank  bills  and  other  things  in  action  may  be 
levied  on  and  sold  or  appropriated,  and  assignments 
thereof  by  the  officer  will  have  the  same  effect  as  if  made 
by  defendant.18 

When  a  railroad  company  received  a  number  of  its 
own  mortgage  bonds  from  a  debtor,  in  payment  of  his 
debt,  not  for  the  purpose  of  canceling  the  same,  but  with 
the  intention  of  putting  them  in  circulation  as  securities, 
such  bonds  were  property  of  the  corporation  and  could 
be  levied  on.19  Generally  it  may  be  said  the  right  to 
levy  on  and  sell  personal  property  is  measured  by  the 
power  to  take  and  deliver  possession  of  it.20  It  has  been 

is  Cresswell  v.  Burt,  61-590,  and  57-336;  Ellithrope  v.  Reidesil,  71- 

cases  cited.  316. 

«  Cook  v.  Jenkins,  30-452.  "  Hawkeye  L.  Co.  v.  Diddy,  84- 

is  Techmeyer  v.    Waltz,   49-645;  634. 
Rix  v.  Silknitter,  57-262.  «  Code,  Sec.  3971. 

is  Burleigh  v.  Piper,  51-649;  see          i9  Hetherington   v.   Hayden,    11- 

Downard  v.  Groff,  40-597;  Heoht  v.  335. 
Dethman,  56-679;  Martin  v.  Knapp,          20  Campbell  v.  Leonard,  11-489. 


§  811.]  EXECUTIONS   AND    EXEMPTIONS.  49 

held  that  the  mortgagor  of  personal  property  in  posses- 
sion of  the  mortgagee  has  no  interest  in  it  subject  to 
levy;  but  provision  is  now  made  by  statute  for  levying 
on  mortgaged  chattels.21  A  promissory  note  may  be 
levied  on  and  sold  on  execution.22  Under  section  3272 
of  the  revision  of  1860,  which  did  not  expressly  include 
judgments,  it  was  held  that  a  judgment  could  not  be 
reached  by  levy  and  sale  on  execution,23  but  that  the 
proper  method  of  procedure  was  to  garnish  the  judgment 
debtor.  Under  sections  3971  and  4035  of  the  code  an 
assignment  of  a  promissory  note  by  an  officer  levying 
on  and  selling  it  has  the  same  'effect  as  if  made  by  the 
defendant  in  execution.24  And  the  word  "defendant,"  as 
used  in  the  statute,  includes  not  only  the  execution  de- 
fendant, but  the  defendant  in  a  garnishment  proceeding 
auxiliary  to  execution.  A  judgment  may  now  be  levied 
on  and  sold  as  other  personal  property.25  When  land  is 
sold  on  execution  issued  on  a  judgment  which  was  not 
a  lien  on  it,  and  such  sale  is  set  aside,  the  satisfaction 
of  the  judgment  by  the  sale  should  also  be  set  aside.26 

§  811.  Of  proceedings  by  garnishment. — In  pro- 
ceedings by  garnishment  on  execution,  the  garnishee 
must  be  served  as  in  case  of  an  attachment;  his  answer 
may  be  taken  by  the  officer  or  he  may  be  notified  to  ap- 
pear in  court,  and  in  every  particular  the  proceedings 
must  be  the  same  as  under  garnishment  on  attachment 
as  near  as  practicable.27  And  proceedings  by  garnish- 
ment on  execution  will  not,  in  any  manner,  be  affected 
by  the  expiration  of  the  execution  or  its  return,  and  when 
parties  thereunder  have  been  garnished,  the  officer  must 
return  to  the  next  term  of  court  thereafter  a  copy  of  the 
execution  with  all  his  doings  thereon,  so  far  as  they  re- 

21  Code,     Sees.     3979     to     3990;  24  Earhart  v.  Gant,  32-481. 
Campbell  v.  Leonard.  11-489;  Tor-  25  Ochiltree  v.  The  M.,  I.  &  N.  R. 
bet  v.  Hayden,  11-435;   Gordon  v.  Co.,  49-150;   see  Osborn  v.   Cloud, 
Hardin,  33-550;  Vanslyck  v.  Mills,  23-104:   Beaver  Valley  Bk.  v.  Cou- 
34-375;    Wells    v.    Sabelowitz,    68-  sins,   67-310. 

238.  26  Farmer  v.  Sasseen,  63-110. 

22  Osborn  v.  Cloud,  23-104.  27  Code,  Sec.  3975;  Ball  v.  Cedar 
as  Osborn  v.  Cloud,  23-104.                   Valley  Creamery  Co.,  67  N.  W.,  232. 

Vol.  IT— 1 


50  EXECUTIONS   AND   EXEMPTIONS.  [§    812. 

late  to  said  garnishment,  and  the  clerk  must  docket  an 
action  thereon  without  fee,  and  the  further  proceedings 
must  conform  to  proceedings  in  garnishment  under  at- 
tachments.28 When  issue  is  not  taken  on  the  answer  of 
the  garnishee  at  the  term  it  is  filed,  he  is  entitled  to  notice 
unless  he  voluntarily  appears.29  A  fund  in  court  may 
be  levied  on.30  Formerly  the  statute  did  not  require 
notice  of  the  garnishment  proceeding  to-be  given  to  the 
judgment  debtor.31  Now  such  notice  is  necessary.32 

§  812.  Of  levying  on  mortgaged  chattels. — Mort- 
gaged personal  property,  not  exempt  from  execution, 
may  be  taken  on  attachment  or  execution  issued  against 
the  mortgagor  if  the  officer,  or  the  attachment  or  execu- 
tion creditor,  within  ten  days  after  such  levy  shall  pay 
to  the  holder  of  the  mortgage  the  amount  of  the  mort- 
gage debt  and  interest  accrued,  or  deposit  the  same  with 
the  clerk  of  the  district  court  of  the  county  from  which 
the  attachment  or  execution  issued  for  the  use  of  the 
holder  of  the  mortgage,  or  secure  the  same  as  hereinafter 
provided.33 

When  the  debt  secured  by  the  mortgage  is  not  due  as 
shown  by  the  mortgage,  the  officer,  or  the  attachment 
or  execution  creditor  must  also  pay  or  deposit  with  the 
clerk  interest  on  the  principal  sum  at  the  rate  specified 
in  the  mortgage  for  the  term  of  sixty  days  from  the  date 
of  the  deposit  unless  the  debt  secured  falls  due  in  a  loss 
time,  in  which  case  interest  must  be  deposited  for  such 
shorter  period.34 

If  within  ten  days  after  such  levy  the  attachment  or 
execution  creditor  does  not  pay  the  amount,  make  the  de- 
posit, or  give  the  security  required;  the  levy  will  be  dis- 
charged and  the  property  restored  to  the  possession  of 

zs  Code,  Sec.  3976.  33  Code,  Sec.  3979:  Blotcky  v. 

29  Kienne  v.  Anderson,  13-565.  O'Neill,  83-574;  Danforth  v.  Har- 

so  Patterson  v.  Pratt,  19-358.  low,  76-236:  Deering  v.  Wheeler, 

si  Smith  v.  Dickson,  58-444.  76-496;  Willson  v.  Felthouse,  90- 

32  Code  Sec.  3947;  Hamilton  315. 

Buggy  Co.  v.  Iowa  Buggy  Co.,  88-  34  Code,  Sec.  3980. 

364;  Ammerman  v.  Vosburg,  70  N. 

W.,  620. 


§  812.  ]          EXECUTIONS  AND  EXEMPTIONS.  51 

the  person  from  whom  it  was  taken  and  the  creditor  will 
be  liable  to  the  holder  of  the  mortgage  for  any  damages 
sustained  by  reason  of  such  levy.35 

When  such  sum  is  paid  to  the  holder  of  the  mortgage 
or  deposited  with  the  clerk,  the  attachment  or  execution 
creditor  will  be  subrogated  to  all  the  rights  of  such 
holder  and  the  proceeds  of  the  sale  of  the  mortgaged 
property  will  be  first  applied  in  the  discharge  of  such 
indebtedness  and  the  costs  incurred  under  the  writ  of 
attachment'  or  execution.36 

If  for  any  reason  the  levy  upon  the  mortgaged  prop- 
erty is  discharged  or  released  without  a  sale  thereof,  the 
attachment  or  execution  creditor  who  has  paid  or  de- 
posited the  amount  of  the  mortgage  debt  will  have  all 
the  rights  under  such  mortgage  possessed  by  the  holder 
at  the  time  of  the  levy. 

If  the  holder  thereof  desire  to  be  reinstated  in  his 
rights  thereunder  he  may  repay  the  money  received  by 
him  with  interest  thereon  at  the  rate  borne  by  the  mort- 
gage debt  for  the  time  it  has  been  held  by  him  and  de- 
mand the  return  of  the  mortgage,  whereupon  his  rights 
thereunder  will  revest  in  him  and  the  attachment  or  exe- 
cution creditor  will  be  entitled  to  the  deposit  made,  or 
any  part  thereof  remaining  in  the  hands  of  the  clerk,  or 
any  money  returned  to  the  clerk  by  the  holder  of  the 
mortgage.37 

The  holder  of  the  mortgage  must  before  receiving  the 
money  tendered  to  him  by  the  attaching  or  execution 
creditor  or  deposited  with  the  clerk,  state  over  his  signa- 
ture and  under  oath,  on  the  back  of  the  mortgage,  the 
amount  due  or  to  become  due  thereon,  and  deliver  the 
same,  together  with  the  note  or  other  evidence  of  indebt- 
edness secured  by  said  mortgage,  to  the  person  paying 
the  said  amount  or  to  the  clerk  with  whom  the  deposit  is 
made,  and  the  holder  of  the  mortgage  will  only  receive 

as  Code,  Sec.  3981.  «  Code,  Sec.  3983. 

30  Code,    Sec.     3982;     Frantz    v. 
Hanford,  87-469. 


52  EXECUTIONS  AND  EXEMPTIONS.          [§  812. 

the  amount  so  stated  to  be  due  and  the  surplus,  if  any, 
will  be  returned  to  the  person  making  the  deposit.38 

When  the  attaching  or  execution  creditor  thus  pays 
the  amount  of  the  claim  under  the  mortgage,  he  will 
not  be  required  to  give  an  indemnifying  bond  on  notice 
to  the  sheriff  by  the  holder  of  the  mortgage  of  his  right 
to  the  property  thereunder,  or  if  one  has  been  given, 
it  will  be  released.39 

If  under  execution  sale  the  mortgaged  property  does 
not  sell  for  enough  to  pay  the  mortgage  debt,  interest 
and  costs  of  sale,  the  judgment  creditor  will  be  liable  for 
all  costs  thus  made,  but  if  a  greater  sum  is  realized  the 
officer  conducting  the  sale  must  at  once  pay  to  the  mort- 
gage holder  the  amount  due  thereunder  and  apply  the 
surplus  on  the  execution.40 

For  the  purpose  of  enabling  the  execution  or  attach- 
ing creditor  to  determine  the  amount  to  be  tendered  or 
deposited  to  hold  the  levy  under  the  writ  of  attachment 
or  execution,  the  person  entitled  to  receive  payment  of 
the  mortgage  debt  must  deliver  to  any  such  person,  upon 
written  demand  therefor,  a  statement  in  writing  under 
oath  showing  the  nature  and  amount  of  the  original  debt, 
the  date  and  the  amount  of  each  payment,  if  any,  which 
has  been  made  thereon,  and  an  itemized  statement  of 
the  amount  then  due  and  unpaid.41  If  the  right  of  the 
mortgagee  to  receive  such  or  any  sum  is  for  any  reason 
questioned  by  the  levying  creditor,  he  may  within  ten 
days  after  the  levy  or  after  demand  is  made  for  a  state- 
ment of  the  amount  due,  commence  an  action  in  equity 
to  contest  such  right,  upon  filing  a  bond  in  a  penalty 
double  the  amount  of  such  mortgage,  conditioned  for 
the  payment  of  any  sum  to  be  found  due  to  the  person 
entitled  thereto,  with  sureties  to  be  approved  by  the 
clerk,  and  if  such  mortgagee  is  a  non-resident  or  his  resi- 
dence is  unknown,  service  may  be  had  by  publication  as 
in  other  actions,  but  if  such  residence  becomes  known 

ss  Code,  Sec.  3984.  *°  Code,  Sec.  3986;  Tyler  v.  Budd, 

3»  Code,  Sec.  3985.  64  N.  W.,  679. 

*i  Code,  Sec.  3987. 


§  812.]  EXECUTIONS   AND   EXEMPTIONS.  5$ 

before  final  submission,  the  court  may  order  personal 
service  to  be  made.  If  commenced  at  law  the  court  may 
transfer  the  same  to  the  equity  calendar  as  in  other 
cases.  The  court  may  appoint  a  receiver  and  must  de- 
termine the  amount  due  on  the  mortgage  and  all  other 
questions  properly  presented,  and  may  continue  and  pre- 
serve or  dismiss  the  lien  of  the  levy,  the  costs  to  be  taxed 
to  the  losing  party.  If  there  are  two  or  more  mortgages, 
the  creditor  may  admit  the  validity  of  one  or  more,  and 
make  the  required  deposit  as  to  such,  and  contest  the 
other,  and  where  there  are  two  or  more  such  mortgages, 
each  of  which  is  questioned,  a  failure  to  establish  the 
invalidity  of  all  will  not  defeat  the  rights  of  the  levying 
creditor,  but  in  such  case  the  decree  must  determine  the 
priority  of  liens  and  direct  the  order  of  payment  out  of 
the  proceeds  of  the  property,  which  must  be  sold  under 
a  special  execution  to  be  awarded  in  said  cause.  A  cred- 
itor may,  however,  contest  in  any  other  way  the  validity 
of  any  mortgage.42  A  failure  to  make  the  statement 
above  mentioned  when  required  will  postpone  the  lien  of 
the  mortgage  and  give  the  levy  of  the  writ  of  attachment 
or  execution  priority  over  the  claim  of  the  holder  there- 
of.43 If  the  mortgagee  before  the  levy  of  an  attachment 
or  execution  has  been  garnished  at  the  suit  of  a  creditor 
of  the  mortgagor,  a  creditor  desiring  to  seize  the  mort- 
gaged property  under  a  writ  of  attachment  or  execution 
must  pay  to  the  holder  of  the  mortgage,  or  deposit  with 
the  clerk,  in  addition  to  the  mortgage  debt,  the  sum 
claimed  under  the  garnishment.44 

Prior  to  the  enactment  of  this  statute  it  was  held, 
generally,  that  the  interest  of  the  mortgagor  in  mort- 
gaged chattels  could  not  be  levied  on.45  And  it  was  also 
held  that  the  proper  method  of  reaching  mortgaged 
chattels  was  by  garnishment  of  the  mortgagee.46  The 

42  Code,    Sec.    3988;    Hibbard    v.  **  Code,  Sec.  3990. 

Zenor,  75-471;    Thomas  v.    Farley  «  Campbell  v.  Leonard,  11-489 r 

Mfg.  Co.,  76-735;  Citizens  State  Bk.  Gordon  v.  Hardin,     33-550;     Van- 

v.  Council  Bluffs  Fuel  Co.,  89-618;  slyck   v.    Mills,   34-375;    Porter    v, 

Clark  v.  Patton,  92-247.  Knight,  63-365. 

« Code,  Sec.  3989.  46  Torbet     v.     Hayden,     11-444; 


J54  EXECUTIONS   AND    EXEMPTIONS.  [§  813. 

levy  of  an  attachment  on  mortgaged  chattels  is  not  void 
.because  of  a  failure  to  pay  or  offer  to  pay  the  mortgage 
'debt  where  the  creditors  are  contesting  the  validity  of  the 
mortgage.47  Before  a  creditor  can  contest  the  right  of 
the  mortgagee  under  this  statute  he  must  acquire  an 
apparent  lien  upon  the  property  by  making  a  levy  as 
therein  provided.48  But  when  a  mortgage  is  alleged  to 
be  fraudulent  the  creditor  may  resort  to  any  other  rem- 
edy which  was  available  to  him  before  the  passage  of 
this  statute.49  As  to  the  effect  of  the  levy  upon  a  subse- 
quent valid  mortgage  taken  with  knowledge  of  the 
levy.50  Where  execution  is  levied  on  mortgage  chattels 
the  deposit  by  the  execution  creditor  of  the  amount  of 
the  mortgage  debt  is  properly  deducted  from  the  amount 
realized  at  the  sale.51 

§  813.  Of  the  levy  on  partnership  property  and 
proceedings  thereunder, — When  the  officer  has  an  exe- 
cution in  his  hands  against  one  owning  property  jointly, 
in  common  or  in  partnership  with  another,  he  may  levy 
on  and  take  possession  of  such  property  sufficiently  to 
enable  him  to  appraise  and  inventory  the  same,  and  for 
that  purpose  must  call  to  his  assistance  three  disinter- 
ested persons;  which  inventory  and  appraisement  must 
be  returned  by  the  officer  with  the  execution,  and  he 
must  state  in  his  return  who  claims  to  own  the  prop- 
erty.52 

And  in  such  a  case,  the  plaintiff  will,  from  the  time 
the  property  was  so  levied  on,  have  a  lien  on  the  interest 
of  the  defendant  therein  and  may  commence  an  action  in 
equity  to  ascertain  the  nature  and  extent  of  such  interest, 
and  to  enforce  the  lien,  and  if  it  be  deemed  necessary  or 
proper  by  the  court,  a  receiver  may  be  appointed  to  take 
possession  of  the  property.53  The  interest  of  the  defend- 

Buck-Reiner  Co.  v.  Beatty,  82-353;  so  Clark  v.  Patton,  92-247. 

Blotcky  v.  O'Neill,  83-574.  si  Tyler  v.  Budd,  64  N.  W.,  679. 

47  Hibbard  v.  Zenor,  75-471.  «  Code,    Sec.    3977;    Lambert    v. 

« Thomas    v.    Farley    Mfg.    Co.,  Powers,    36-18;     see    Richards    v. 

76-735.  Haines,  30-574. 

49  Citizens  State  Bk.  v.  Council  53  Code,   Sec.    3978;    Richards   v. 

Bluffs  Fuel  Co.,  89-618.  Haines,  30-574;    Lambert  v.   Pow- 


§  814.  ]  EXECUTIONS  AND  EXEMPTIONS.  55 

ant  in  the  assets  of  a  partnership  of  which  he  is  a  mem- 
ber, is  liable  on  execution,  and  must  be  first  exhausted 
before  resort  can  be  had  to  his  homestead.54  When  a 
separate  creditor  of  an  individual  partner  levied  on  and 
sold  partnership  property,  without  bringing  an  action 
to  determine  the  partner's  interest  therein,  as  provided 
by  law,  such  sale  was  held  invalid  as  against  creditors 
of  the  partnership  who  afterward  levied  on  the  same 
property.55 

When  it  is  sought  to  reach  an  interest  of  a  party  in 
partnership  property,  the  burden  is  on  the  plaintiff  to 
show  that  the  party  is  a  member  of  the  partnership,  and, 
unless  such  fact  is  established  by  the  evidence,  the  ap- 
pointment of  a  receiver  to  determine  the  value  of  his 
interest  is  erroneous.56  The  creditor  of  an  insolvent  per- 
son may  subject  to  the  payment  of  his  debt,  real  prop- 
erty, the  title  to  which  is  in  the  insolvent's  wife's  name, 
but  toward  the  payment  of  which  the  debtor  has  con- 
tributed, to  the  extent  of  such  contribution,  and  this  is 
so  even  though  the  property  in  controversy  is  the  home- 
stead.57 

§  814.  Of  executions  against  municipal  corpora- 
tions.—  If  the  sheriff  has  in  his  hands  an  execution 
against  a  municipal  corporation,  he  must  levy  the  same 
upon  the  property  of  such  corporation,  not  exempt  from 
execution,  if  any  be  found,  and,  if  none  such  is  found, 
the  sheriff  must  return  the  writ,  reciting  the  facts  in  his 
return;  if  no  property  be  found,  or  if  the  judgment  cred- 
itor elect  not  to  issue  execution  against  the  corporation, 
a  tax  must  be  levied  as  early  as  practicable  to  pay  off  the 
judgment,  and  when  a  tax  has  been  so  levied  and  any 
part  thereof  collected,  the  treasurer  of  the  corporation 
must  pay  the  same  to  the  judgment  creditor  or  to  the 
clerk  of  the  court  in  wrhich  judgment  was  rendered  in 
satisfaction  thereof.58  A  municipal  corporation  can  ex- 

ers,  36-18;   Aultman  v.  Fuller,  53-  Be  Dupuy  v.  Sheak,  57-361. 

60.  57  Croup  v.  Morton,  49-16. 

54  Lambert  v.  Powers,  36-18.  BS  Code,  Sec.  3973. 

55  Aultman  v.  Fuller,  53-60. 


56  EXECUTIONS  AND  EXEMPTIONS.          [§  815. 

ercise  the  power  of  taxation  only  when  expressly  con- 
ferred by  statute.59  But  when  a  judgment  against  a 
municipal  corporation  can  be  paid  in  no  other  manner,  it 
is  the  duty  of  the  corporate  authorities  to  levy  a  special 
tax  to  discharge  the  same  if  within  the  limit  of  their 
power  to  levy  taxes.60  And  such  duty  will  be  enforced 
by  mandamus.61  And  when  it  is  not  in  the  power  of  the 
corporation  to  pay  off  the  judgment  by  a  single  levy,  it 
may  make  levies  from  year  to  year  until  the  indebted- 
ness is  paid.62  While  a  judgment  creditor  may  take  the 
scrip  of  a  municipal  corporation  in  payment  of  his  judg- 
ment, he  is  not  compelled  to  do  so.63  It  was  held  under 
the  revision  of  1860  that  if  the  proper  officers  of  a  munici- 
pal corporation  having  power  to  levy  a  tax  for  the  pay- 
ment of  a  judgment  refused  to  do  so  after  a  demand 
made,  they  were  individually  liable.64  If  the  current  ex- 
pense of  a  corporation  absorbs  the  entire  tax  author- 
ized to  be  levied,  the  officers  of  such  corporation  are  not 
liable  for  refusing  to  make  a  further  levy,  nor  for  a  failure 
to  set  apart  a  portion  of  that  levy  in  payment  of  the 
judgment,65  and  the  provisions  of  section  3049  of  the  code 
are  applicable  to  school  districts.66  If  the  corporation 
purposely  makes  its  assessment  and  valuation  low  to 
avoid  a  judgment  against  it,  it  may  be  compelled  by 
mandamus  to  make  a  fair  assessment.67  The  tax  may  be 
an  addition  to  that  provided  for  in  sections  496  to  498  of 
the  code.68 

§  815.  How  stock  interests  of  the  defendant  in  a 
corporation  are  levied  on. — Stock  interests  owned  by 
the  defendant  in  any  company  or  corporation,  also  debts 
due  him  and  property  of  his  in  the  hands  of  third  per- 

59  Clark  v.     Davenport,    14-494;  es  Porter   v.    Thompson,    22-391; 

Jeffries  v.  Lawrence,  42-498:  Iowa  Oswald  v.  Thedinga,  17-13. 

R.  L.  Co.  v.  County  of  Sac,  39-124.  64  Same  as  No.  63  above. 

so  Oswald    v.    Thedinga,    17-13;  es  Porter   v.    Thompson,    22-391; 

Coy  v.  Lyons,  17-1;   Coffin  v.  City  Coffin  v.  Davenport,  26-515. 

Council,    etc.,    26-515;     Porter    v.  ee  Boynton  v.  Dist.  Twp.,  34-510; 

Thompson,  22-391;  Iowa  R.  L.  Co.  Stevenson    v.    Dist.    Twp.,    35-462; 

v.  County  of  Sac,  39-124.  Brown  v.  Crego,   32-498;    State  v 

«i  Coy  v.  Lyons,  17-1;  Boynton  v.  Davenport,  12-335. 

Dist.  Twp.,  34-510.  or  Coffin  v.  Davenport,  26-515. 

62  Boynton  v.  Dist.  Twp.,  34-510.  «sRice  v.  Walker,  44-458. 


§§  816,  817.]  EXECUTIONS   AND    EXEMPTIONS.  57 

sons,  may  be  levied  upon  by  process  of  garnishment.69 
But,  as  we  have  seen,  judgments  owned  by  him  may  be 
levied  on  and  sold  under  execution  without  garnish- 
ment.70 

§  816.  Debtor  may  pay  the  sheriff. — After  the 
rendition  of  a  judgment,  any  person  indebted  to  the  de- 
fendant in  execution  may  pay  to  the  sheriff  the  amount 
of  such  indebtedness,  or  so  much  thereof  as  is  neces- 
sary to  satisfy  the  execution,  and  the  sheriff's  receipt  will 
be  a  sufficient  discharge  of  the  debt  to  the  extent  of  such 
payment.71  The  assignee  of  railroad  bonds  under  an 
assignment  made  after  the  levy  of  an  execution  thereon 
takes  them  subject  to  the  levy.72 

§  817.  Effect  of  the  levy,  surplus,  etc. — When 
property  subject  to  execution,  and  sufficient  to  pay  the 
debt,  has  been  levied  on  and  advertised  as  provided  by 
law,  n-either  plaintiff  nor  his  assignee  can  treat  it  as  a 
nullity,  and  sue  out  a  second  execution  to  be  levied  on 
additional  property;  sometimes  the  writ  may  be  ordered 
returned  by  the  plaintiff  or  his  assignee  after  levy  and 
before  sale,  as  when  further  time  is  given,  or  the  proceed- 
ings are  illegal,  or  irregular,  or  when  the  sale,  if  made, 
would  be  void.73  When  the  sheriff  levies  on  the  prop- 
erty of  a  third  person  the  act  is  a  tort  and  the  writ  does 
not  protect  him,74  and  the  officer  is  liable  as  a  trespasser 
to  the  owner.75  Or  the  owner  may  replevin  the  property 
without  making  any  demand  therefor.76  Where  a  sur- 
plus arises  from  a  sale  of  property  by  the  sheriff  on  fore- 
closure of  a  mortgage,  and  he  has  an  execution  in  his 
hands  against  the  party  entitled  to  such  surplus,  he  may 
levy  on  such  surplus  and  apply  it  on  such  execution.77 
And  when  he  has  other  executions  in  his  hands  he  may 

69  Code,     Sec.     3974;     Claflin  v.      Downard     v.     Grenshaw,     49-296; 
Iowa  City,  12-286;  Lambert  v.  Pow-      Code.  Sec.  4042. 

ers,  36-18.  74  Shea  v.  Watkins,  12-605. 

70  Code,  Sec.  3971.  75  Rakestraw    v.     Hamilton,   14- 

71  Code,  Sec.  3972.  147. 

72  Hetherington   v.   Hayden,   11-          76  Gimble  v.  Ackley,  12-27;   Shea 
335.  v.  Watkins,  12-605. 

73  McWilliams  v.  Myers,  10-325;          77  Payne  v.  Billingham,  10-360. 


58  EXECUTIONS  AND  EXEMPTIONS.          [§  818. 

apply  the  surplus  thereon,  whether  it  arises  from  a  sale 
of  mortgaged  premises  or  on  a  general  execution;  if  a  sur- 
plus still  remains,  it  must  be  paid  to  the  debtor  unless 
there  are  liens  upon  the  property  which  ought  to  be  paid 
therefrom  and  the  holders  of  them  make  claim  to  such 
surplus,  in  which  case  the  same  must  be  paid  into  the 
hands  of  the  clerk  to  be  applied  as  ordered  by  the  court.78 
Property  in  the  hands  of  a  receiver  appointed  by  the 
court  is  not  liable  to  be  seized  on  execution.™  Ordinarily 
a  levy  on  sufficient  personal  property  to  satisfy  the  judg- 
ment becomes  prima  facie  a  satisfaction  of  the  claim  as 
to  junior  execution  creditors,  and  sometimes,  it  seems,  as 
to  the  defendant  in  execution.80  And  a  release  of  the 
levy  without  the  knowledge  of  a  surety  will  release  him, 
and  no  judgment  can  be  sued  on  while  property  sufficient 
to  satisfy  it  is  held  under  execution.81 

§  818.  When  an  indemnity  bond  may  be  de- 
manded.— An  officer  must  levy  the  execution  in  his 
hands  on  any  personal  property  in  the  possession  of,  or 
thai  he  has  reason  to  believe  belongs  to  the  defendant, 
or  on  which  the  plaintiff  directs  him  to  levy,  unless  he 
has  received  notice  in  writing  under  oath  from  some 
other  person,  his  agent  or  attorney,  that  such  property 
belongs  to  him,  or,  if  after  levy  he  receives  such  notice, 
he  may  release  the  property  unless  an  indemnifying  bond 
is  given,  but  the  officer  will  be  protected  from  all  liability 
by  reason  of  such  levy  until  he  receives  such  written 
notice.82  And  the  provisions  of  this  section  apply  also  to 
levies  under  special  execution.83  A  judgment  creditor 
to  induce  the  sheriff  to  sell  property  levied  upon  under 
an  execution  where  no  notice  had  been  received  that  the 
property  was  claimed  by  a  third  person,  voluntarily  ex- 

78  Code,  Sec.  4030.  Pease,  42-488;   Finch  v.  Hollinger, 

79  Martin  v.  Davis,  21-535.  43-598;    West  v.  St.  John,  63-287; 
so  Lucas    v.    Cassady,    2    G.    Gr.,      Cox   v.    Currier,    62-551;    Allen    v. 

208;  Williams  v.  Gartfell.  4  G.  Gr.,  Wheeler,  54-628;  Evans  v.  Thurs- 

287;  see  Reed  v.  Crossthwaite,  6-  ton.  53-122:  Whitney  v.  Gammon, 

219.  .  67  N.  W.,  405. 

si  Sherraden  v.  Parker,  24-28;  83  Bank  of  Reinbeck  v.  Brown, 

Peck  v.  Parchen,  52-46.  76-696. 

82  Code,    Sec.    3991;     Koster    v. 


§  818.  ]          EXECUTIONS  AND  EXEMPTIONS.  50 

edited  a  bond  to  indemnify  the  sheriff  conditioned  to 
pay  "to  any  claimant  of  the  property"  the  damages  he 
may  sustain  in  consequence  of  the  levy  and  sale.  Such 
creditor  and  his  sureties  were  not  liable  on  the  bond.84 
Under  code  3991  it  is  sufficient  to  serve  the  notice  on 
the  deputy  who  made  the  levy,  and  the  claimant  having 
delivered  the  notice  and  a  copy  to  the  deputy,  and  he 
having  read  the  original,  and  indorsed  acceptance  of 
service  thereon  and  returned  it,  keeping  a  copy,  the 
service  is  sufficient.85  The  action  of  replevin  will  not 
lie  against  an  officer  holding  the  property  under  execu- 
tion, unless,  prior  to  the  commencement  of  the  suit,  he 
is  served  with  written  notice  of  the  ownership  of  such 
property.86  But  it  seems  that  the  failure  of  plaintiff  to 
plead  service  of  his  notice  may  be  waived,  as  may  objec- 
tions to  the  sufficiency  of  the  notice  or  service.87  The 
reading  of  a  bill  of  sale  to  the  officer  does  not  constitute 
the  notice  required  by  the  statute.88  An  officer  can  not 
recover  for  expenses  and  attorney's  fees  in  defending  a 
replevin  suit  for  the  property  levied  on  in  which  he  is 
successful.89  Service  of  the  written  notice  upon  the  dep- 
uty sheriff  who  made  the  levy  is  sufficient,90  and  where 
the  execution  was  levied  on  mortgaged  chattels  and  the 
mortgagee  gave  written  notice  to  the  officer  that  he  was 
the  owner  of  the  chattels  by  virtue  of  the  chattel  mort- 
gage, and  demanded  their  immediate  return,  it  was  held 
the  notice  was  sufficient.91  Where  an  officer  had  several 
executions  in  favor  of  several  plaintiffs  and  all  against 
the  same  defendant  which  he  levied  on  the  property  as 
that  of  the  defendant,  which  was  claimed  by  a  third  per- 
son as  owner,  and  such  third  person  gave  one  notice  to 

s*  Whitney  v.  Gammon,  67  N.  W.,  «s  Gray  v.  Parker,  49-624. 

405.  89  Rickabaugh     v.     Bada,    50-56; 

ss  Peterman  v.  Jones,  63  N.  W.,  Danforth  v.  Harlow,  76-236;  Dolit- 

338;  Burrows  v.  Waddell,  52-195.  tie  v.  Hall,  78-571. 

se  Finch    v.    Hollinger,     43-598;  »°  Burrows    v.    Waddell,    52-195; 

Koster  v.  Pease,  42-488;    Peterson  Waterhouse  v.  Black,  87-317;  Tur- 

v.  Espeset,  48-262;  Allen  v.  Wheel-  ner  v.  Younker,  76-258;   Linden  v. 

er,  54-628;  see  chapter  on  Attach-  Green,   81-365. 

ments.  <n  Wells  v.  Chapman.  59-658;  and 

8T  Warder  v.  Hoover,  51-49.  see  Kern  v.  Wilson,  82-407. 


60  EXECUTIONS   AXD    EXEMPTIONS.  [§  819. 

the  officer  making  it  applicable  to  all  the  executions,  and 
the  execution  creditors  all  united  in  one  bond,  it  was 
held  the  notice  and  bond  were  good.92  Acceptance  of 
service  of  the  notice  herein  provided  for  by  the  deputy 
sheriff  is  not  binding  on  the  sheriff  who  makes  the  levy.1'3 
Where  the  sheriff  seizes  property  of  one  person  under 
execution  against  another,  the  owner  may  maintain  re- 
plevin to  recover  the  value  of  the  property,  even  though 
it  has  been  sold  by  the  sheriff,  providing,  of  course,  the 
owner  has  given  the  statutory  notice.94  When  the  dep- 
uty sheriff  levies  an  execution  on  personal  property  and 
alone  retains  the  actual  possession  of  it,  the  notice  of 
ownership  by  a  third  person  may  be  served  on  the  sheriff, 
the  deputy  being  his  agent.95  The  notice  is  not  neces- 
sary in  an  action  by  the  owner  against  one  other  than  the 
sheriff.96  The  notice  is  for  the  protection  of  the  officer.97 
It  is  not  therefore  necessary  where  a  delivery  bond  has 
been  executed.98 

The  notice  herein  mentioned  must  be  in  the  form  pre- 
scribed in  such  cases  in  attachments,  and  reference  is 
made  to  the  form  given  in  the  chapter  on  attachments. 

§  819.  Levy  discharged,  when. — If  the  bond  is  not 
given  the  officer  may  refuse  to  levy  the  execution,  or,  if 
he  has  levied,  he  may  refuse  to  sell  and  may  restore  the 
property  to  the  person  from  whose  possession  it  was 
taken,  and  the  levy  will  in  such  case  be  discharged.  The 
bond  must  be  given  within  a  reasonable  time  after  it  is 
required  by  the  officer.99  When  the  defendant,  as  sheriff, 
levied  an  execution  on  certain  chattels  as  the  property 
of  the  execution  defendant,  and  plaintiff  gave  notice  that 
he  was  the  owner  of  the  chattels,  and  defendant  de- 
manded an  indemnifying  bond,  which  the  execution 
plaintiff  refused  to  give,  and  the  property  was  released 
and  execution  returned,  such  facts  did  not  estop  the  de- 

82  Baxter  v.  Ray,  62-336.  97  Bradley  v.   Miller,   69   N.   W., 

93  Chapin   v.    Pinkerton,    58-236.  426. 

94  Hardy  v.  Moore,  62-65.  98  Ayres,  etc.  Co.  v.  Dorsey  Pro- 
as Headington  v.    Langland,    65-  duce  Co.,  70  N.  W.,  111. 

276.  »o  Code,  Sec.  3993. 

so  Guest  v.  Heinly,  93-183. 


§  820.]  EXECUTIONS   AND   EXEMPTIONS.  61 

fendant — the  officer — from  levying  a  second  execution 
issued  on  the  same  judgment,  upon  the  same  property.1 

§  820.  Of  the  bond,  its  terms  and  conditions.— 
When  the  officer  receives  notice  of  claim  of  ownership  of 
the  property  in  some  third  person,  he  should  forthwith 
notify  the  plaintiff,  his  agent  or  attorney,  that  an  indem- 
nifying bond  is  required.  Bond  may  thereupon  be  given 
by  or  for  the  plaintiff,  with  one  or  more  sufficient  sure- 
ties, to  be  approved  by  the  officer,  to  the  effect  that  the 
obligors  will  indemnify  him  against  the  damages  which 
he  may  sustain  in  consequence  of  the  seizure  or  sale  of 
the  property,  and  will  pay  to  any  claimant  thereof  the 
damages  he  may  sustain  in  consequence  of  the  seizure 
or  sale,  and  will  warrant  to  any  purchaser  of  the  prop- 
erty such  estate  or  interest  therein  as  is  sold,  and  there- 
upon the  officer  must  proceed  to  subject  the  property  to 
the  execution  and  must  return  the  indemnifying  bond  to 
the  district  court  of  the  county  in  which  the  levy  is 
made,  which  must  be  by  the  clerk  filed  and  kept  for  the 
use  of  those  for  wThom  it  was  executed.2 

Such  bond  may  be  in  the  following  form: 

FORM  OF  INDEMNIFYING  BOND. 


Know  all  men  by  these  presents,  that  we, ,  principal,  and- 


and  ,  sureties,  are  held  and  firmly  bound  unto  ,  sheriff  of 

county,  Iowa  in  the  penal  sum  of dollars,  lawful  money  of 

the  United  States,  well  and  truly  to  be  paid  to  the  said ,  his  heirs, 

executors  and  assigns.  The  conditions  of  this  obligation  are  such  that 
whereas,  the  said ,  sheriff  as  aforesaid,  has  in  his  hands  to  be  ex- 
ecuted a  certain  writ  of  execution,  issued  from  the  office  of  the  clerk  of 

the  district  court  of  county,  Iowa,  on  a  judgment  rendered  in 

said  court  on  the day  of ,  18 — ,  for  the  sum  of dollars 

damages,   and  dollars   costs,   in  favor  of   the  said  and 

against  the  said ,  which  said  writ  is  directed  to  the  said  sheriff. 

Now,  if  said  obligors  shall  and  will  indemnify  the  said  against 

all  damages  which  he  may  sustain  in  consequence  of  the  seizure  or  sale 
on  said  writ  of  the  following  described  personal  property,  to-wit:  (here 
describe  the  property  particularly)  and  shall  and  will  pay  to  any  claim- 
ant of  said  property  the  damages  he  may  sustain  in  consequence  of  the 
said  seizure  or  sale  thereof,  and  shall  and  will  warrant  and  make  good 

i  Clark  v.  Reiniger,  66-507.  2  Code,  Sec.  3992. 


62  EXECUTIONS  AND  EXEMPTIONS.          [§  821. 

to  the  purchaser  thereof  at  such  sale,  all  the  estate  and  interest  which 
shall  be  sold  therein  under  said  sale,  then  this  obligation  to  be  void, 
otherwise  to  remain  in  full  force  and  virtue. 

Dated  this  —      -  day  of ,  18—. 

,  principal. 

,  surety. 


There  should  be  indorsed  upon  this  bond  the  approval 
of  the  sheriff,  as  follows : 

The  foregoing  bond  taken  and  the  surety  therein  approved  by  me, 

this day  of A.  D.  18—. 

,  sheriff  of county,  Iowa. 

If  the  indemnifying  bond  is  given,  the  officer  must 
hold  the  property;  his  liability  in  such  cases  is  absolute, 
unless  the  property  is  taken  from  him  by  legal  process.3 
An  officer  is  not  liable  in  damages  for  failing  to  levy 
upon  property  in  the  execution  defendant's  possession,  if 
he  had  no  interest  therein  subject  to  levy.4  When  an 
execution  is  levied  on  chattels  under  mortgage,  and  the 
mortgagee  claims  the  property,  but  the  execution  plain- 
tiff gives  an  indemnifying  bond  and  directs  the  seizure 
of  the  property,  it  is  held  he  can  not  defeat  a  money  judg- 
ment on  the  bond,  in  favor  of  the  mortgagee,  on  the 
ground  that  he  had  the  property  which  the  mortgagee 
might  take  under  his  mortgage.5  But,  as  the  statute  re- 
lating to  notice  does  not  apply  to  cases  where  the  execu- 
tion defendant  claims  the  property  as  exempt,  it  would 
seem  that  the  officer  would  have  no  right  to  demand  the 
bond  provided  in  cases  where  notice  is  given.6 

§  821.  Of  the  application  of  proceeds,  etc. — When 
property,  for  the  sale  of  which  the  officer  is  indemnified, 
sells  for  more  than  enough  to  satisfy  the  execution  under 
which  it  was  taken,  the  surplus  must  be  paid  into  the 
court  tc  which  the  indemnifying  bond  is  directed  to  be 
returned.  The  court  may  order  such  disposition  or  pay- 

s  Evans  v.  Thurston,  53-122.  «  McCoy  v.  Cornell,  40-457;  Par- 

4  Crosby  v.  Hungerford.  59-712.      sons  v.  Thomas,  62-319. 
o  Rand  v.  Barrett,  66-731. 


§  822.]  EXECUTIONS   AND  EXEMPTIONS.  63 

ment  of  the  money  to  be  made,  temporarily  or  absolute- 
ly, as  may  be  proper  in  respect  to  the  rights  of  the  parties 
interested.7 

§  822.  What  property  is  exempt  from  execution. 
—Property  exempt  from  execution  can  not  be  levied 
on,  and  there  is  exempt  to  every  debtor  who  is  a  resident 
of  this  State  and  the  head  of  a  family  the  following  prop- 
erty: All  wearing  apparel  of  himself  and  family  kept 
for  actual  use  and  suitable  to  their  condition,  and  the 
trunks  or  other  receptacles  necessary  to  contain  the 
same,  one  musket  or  rifle  and  shot  gun,  all  private  libra- 
ries, family  bibles,  portraits,  pictures,  musical  instru- 
ments and  paintings,  not  kept  for  the  purpose  of  sale.  A 
seat  or  pew  occupied  by  the  debtor  or  his  family  in  any 
house  of  public  worship,  an  interest  in  a  public  or  pri- 
vate burying  ground  not  exceeding  one  acre  for  any  de- 
fendant, two  cows  and  two  calves,  one  horse,  unless  a 
horse  is  exempt  as  hereinafter  specified.  Fifty  sheep 
and  the  wool  therefrom  and  the  materials  manufactured 
from  such  wool.  Six  stands  of  bees,  five  hogs  and  all 
pigs  under  six  months  old.  The  necessary  food  for  all 
animals  exempt  from  execution  for  six  months.  All  flax 
raised  .by  the  defendant  on  not  exceeding  one  acre  of 
ground  and  the  manufactures  therefrom.  One  bedstead 
and  the  necessary  bedding  for  every  two  in  the  family; 
all  cloth  manufactured  by  the  defendant  not  exceeding 
one  hundred  yards  in  quantity;  household  and  kitchen 
furniture  not  exceeding  two  hundred  dollars  in  value. 
All  spinning  wheels  and  looms;  one  sewing  machine  and 
other  instruments  of  domestic  labor  kept  for  actual  use. 
The  necessary  provisions  and  fuel  for  the  use  of  the  fam- 
ily for  six  months;  the  proper  tools,  instruments  or 
books  of  the  debtor,  if  a  farmer,  mechanic,  surveyor, 
clergyman,  lawyer,8  physician,  teacher  or  professor.  The 
horse  or  the  team,  consisting  of  not  more  than  two  horses 
or  mules,  or  two  yoke  of  cattle,  and  the  wagon  or  other 
vehicle,  with  a  proper  harness  or  tackle,  by  the  use  of 

7  Code,  Sec.  3994.  »  Abraham  v.  Davenport,  73-111. 


€4  EXECUTIONS  AND  EXEMPTIONS.          [§  822. 

which  a  debtor,  if  a  physician,9  public  officer,  farmer,10 
teamster  or  other  laborer  habitually  earns  his  living; 
and  if  the  debtor  is  a  seamstress,  one  sewing  machine 
will  be  exempt;  if  he  is  a  printer,  there  is  also  exempt 
to  him  the  printing  press  and  the  type,  furniture  and  ma- 
terial necessary  for  the  use  of  such  printing  press  and 
a  newspaper  office  connected  therewith,  not  exceeding  in 
all  the  value  of  twelve  hundred  dollars;  poultry  to  the 
value  of  fifty  dollars  and  the  same  to  any  woman, 
whether  the  head  of  a  family  or  not.11  The  words  "by 
the  use  of  which  the  debtor  habitually  earns  his  living" 
refer  alone  to  the  team,  wagon,  etc.,  and  not  to  the  tools 
of  the  mechanic  or  books  and  instruments  of  the  physi- 
cian.12 

A  threshing  machine  used  by  a  farmer  to  thresh  the 
grain  of  others  for  hire,  as  well  as  his  own  grain,  is  not 
exempt  from  execution.13  A  physician,  in  order  to  avail 
himself  of  the  exemption  of  two  horses,  must  show  the 
use  of  both  for  the  purpose  and  in  the  manner  contem- 
plated by  the  statute,  but  he  need  not  use  both  to- 
gether.14 Property  which  is  by  law  exempt  to  a  widow 
as  the  head  of  a  family,  is  not  to  be  deemed  assets  by  the 
administrator,  nor  administered  upon  as  such.15  And 
consent  of  the  widow  to  such  administration,  under  a 
misapprehension  of  her  rights,  will  not  estop  her  after- 
ward from  claiming  the  property.16  The  exemption  law 
is  to  be  liberally  construed.17  A  person  owning  exempt 
property  can  sell  the  same.18  The  building  in  which  a 
photographer  carries  on  his  business,  even  though  per- 
sonal property,  is  not  exempt.19  The  word  family  is  used 
in  its  ordinary  sense  and  necessarily  includes  more  than 

»  Farmer  v.  Turner,  1-53;  Con-  «  Corp  v.  Griswold,  27-379. 

solidated  Tank  Line  v.  Hunt,  83-6;  «  Ellsworth     v.    Ellsworth,     33- 

Pearson  v.  Quist,  79-54;   Hickman  164. 

v.  Cruise,  72-528.  16  Same  as  No.  15. 

10  Hickman  v.     Cmise,     72-528;  "  Bevan  v.  Hayden,  13-122;  Da- 
Pease  v.  Price,  69  N.  W.,  1120.  vis  v.  Humphrey,  22-137;  Kaiser  v. 

11  Code,  Sec.  4008;  Baker  v.  Haz-  Seaton,  62-463;  Equitable  Life  Ass. 
lett,  53-18;    Patterson  v.  Johnson,  Soc.  v.  Goode,  70  N.  W.,  113;   Ty- 
59-397;  Mitchell  v.  Joyce,  69-121.  ler  v.  Coulthard,  64  N.  W.,  681. 

12  Perkins  v.  Wisner,  9-320.  is  Bevan  v.   Hayden,   13-122. 
is  Meyer  v.  Meyer,  23-359.                      "  Holden  v.  Stranahan,  48-70. 


§  823.  J  EXECUTIONS   AND   EXEMPTIONS.  65 

one  person.20  A  lawyer  who  is  the  head  of  a  family  is 
entitled  to  hold  his  books  and  office  furniture  exempt 
where  he  earns  part  of  his  living  by  legal  work  for  others 
in  his  office.21  A  stallion  kept  by  a  farmer  for  breeding 
purposes  is  not  exempt  as  one  of  a  team  by  which  he 
habitually  earns  his  living.22  An  abstractor  of  titles  is 
not  a  mechanic  within  the  meaning  of  the  law  so  as  to 
exempt  his  books  from  execution.23  One  engaged  in  the 
livery  business  may  be  a  laborer  under  the  statute.24 
Food  prepared  by  a  restaurant  keeper  for  his  boarders 
is  not  exempt.25 

§  823.  Same  —  Of  personal  earnings,  etc. — The 
earnings  of  the  debtor  for  his  personal  services,  or  those 
of  his  family,  at  any  time  within  ninety  days  next  pre- 
ceding the  levy,  are  exempt  from  execution  and  attach- 
ment.26 Earnings  exempt  from  execution  may  be  used 
in  payment  of  property  purchased  by  the  wife,  and  will 
be  held  by  her  free  from  her  husband's  debts.27  The  per- 
sonal earnings  above  spoken  of  refer  to  professional  men, 
mechanics,  laborers,  artists  or  other  workers.28  Nor  is  it 
necessary  that  the  person  claiming  such  exemption 
should  give  notice  of  his  claim  to  the  sheriff  who  seeks  to 
levy  on  such  exempt  property.29  The  creditor  can  not 
seize  by  garnishment  the  earnings  of  a  debtor  accruing 
after  such  garnishment,  except  those  which  accrue  after 
ninety  days,  as  during  the  ninety  days  the  earnings  are 
exempt  whether  they  accrued  before  or  after  garnish- 
ment.30 Money  due  from  boarders  to  a  boardinghouse 
keeper  for  boarding  and  lodging,  furnished  at  a  stated 
sum  per  month,  is  not  exempt,31  Wages  for  personal  ser- 

20  Emerson  v.  Leonard,  65  N.  W.,  denbach,  54-695;   see  Patterson  v. 
153.  Johnson,  59-397. 

21  Equitable    Life    Ass.    Soc.    v.          27  Robb  v.  Brewer,  60-539;  Carse 
Goode,  70  N.  W.(  113.  v.  Reticker,  63  N.  W.,  461;    Nash 

22  Smith  v.  Dayton,  62  N.  W.,  650.  v.  Stevens,  65  N.  W.,  825;  King  v. 

23  Tyler  v.  Coulthard,  64  N.  W.,  Bird,  85-535. 

681.  28  McCoy  v.  Cornell,  40-457;  Mill- 

24  Root  v.  Gay,  64-399;    and  see  ington  v.  Laurer,  89-322. 
Farmer  v.  Turner,  1-53.  29  Same  as  No.  28. 

25  Coffey  v.  Wilson,  65-270.  so  Davis  v.     Humphrey,    22-137; 

26  Code,  Sec.  4011;  Banks  v.  Ro-  see  Banks  v.  Rodenbach,  54-695. 

si  Shelby  v.  Smith,  59-453. 
Vol.  II-5 


66  EXECUTIONS  AXD  EXEMPTIONS.          [§  !S24. 

vices  earned  in  the  use  of  exempt  property  are  exempt.32 
But  a  non-resident  is  not  entitled  to  an  exemption  of  his 
wages,  even  where  the  services  are  rendered  in  the  State 
where  he  resides,  and  are  such  that  under  the  laws  of  that 
State  they  would  be  exempt  in  an  action  brought  there,33 
but  a  creditor  residing  in  this  State  can  not,  by  insti- 
tuting a  proceeding  by  garnishment  in  another  State, 
seize  a  debt  due  to  a  debtor  in  this  State,  and  which  would 
be  here  exempt  from  execution.34 

§  824.  Same — Of  pension  money. — All  moneys  re- 
ceived by  any  person  residing  in  this  State  as  a  pension 
from  the  general  government,  whether  in  possession  of 
such  pensioner  or  deposited,  loaned  or  invested  by  him, 
are  exempt  from  execution  or  attachment,  or  seizure 
under  any  legal  process  whatever,  whether  he  be  the  head 
of  a  family  or  not.35  And  if  he  absconds,  and  leaves  a 
family,  such  moneys  will  be  exempt  to  them.36 

The  exemption  of  pension  money  provided  by  the  stat- 
utes of  the  United  States,  section  4747,  applies  only  to 
such  money  while  in  course  of  transmission  to  the  pen- 
sioner;37 but  the  act  of  the  legislature  above  referred 
to  extends  the  protection  of  the  law  to  this  fund  while 
in  the  hands  of  the  pensioner.  A  pensioner  may  make  a 
gift  of  his  pension  money  and  the  donee  will  hold  the 
same,  or  property  purchased  with  it,  as  against  the 
donor's  creditors.38  Under  this  section  the  exemption  ap- 
plies to  animals  purchased  with  pension  money,  but  not 
to  their  increase  and  to  money,  but  not  to  the  accumula- 
tions and  proceeds  of  it.39 

32  Patterson  v.   Johnson,   59-397.      Palmer,  79-578;   Baugh  v.  Barrett, 

33  Mooney  v.  U.  P.  R.  R.  Co.,  60-      69-495;    Goble   v.    Stephenson,   68- 
346;  Newell  v.  Hayden,  8-140;  Lei-      270. 

ber  v.  U.  P.   R.  Co.,  49-688;   Bur-  se  Code,   Sec.    4016. 

lington  &  M  R.  Co.  v.  Thompson,  37  Webb  v.  Holt,  57-712;  Triplet 

31  Kan.,  180;  Broadstreet  v.  Clark,  v.  Graham,  58-135;  and  see  Baugh 

65-670;  Smith  v.  C.  &  N.  W.  R.  Co.,  v.  Barrett,  69-495. 

60-312;    Lyon   Co.   v.   Callopy,   87-  38  Goble   v.    Stephenson,    68-270; 

567.  Crow  v.  Brown,  81-344;    Smith  v. 

3*Teager    v.     Landsley,    69-725;  Hill,    83-684;    Haefer   v.   Mullison, 

Hager  v.  Adams,  70-746;  see  Mum-  90-372;    Marquardt   v.   Mason,    87- 

per  v.  Wilson,  72-163.  136. 

ss  Code,  Sec.  4009;  Fayette  Coun-  so  Diamond     v.    Palmer,  79-578; 

ty  v.  Hancock,  83-694;  Diamond  v.  Haefer  v.  Mullison,  90-372. 


§§825,826,827.1   EXECUTIONS  AND  EXEMPTIONS.  67 

§  825.  Of  insurance  money. — A  policy  of  insurance 
on  the  life  of  an  individual,  in  the  absence  of  an  agree- 
ment or  assignment  to  the  contrary,  enures  to  the  sepa- 
rate use  of  the  husband  or  wife  and  children  of  such  indi- 
vidual independently  of  his  or  her  creditors;  and  an  en- 
dowment policy  payable  to  the  assured  on  attaining  a  cer- 
tain age,  is  exempt  from  liability  for  any  of  his  or  her 
debts,  as  is  also  any  benefit  or  indemnity  paid  under  an 
accident  policy,  and  the  avails  of  all  policies  of  insurance 
on  the  life  of  any  individual  payable  to  his  surviving 
widow  are  exempt  from  liabilities  for  all  debts  of  sucli 
beneficiary  contracted  prior  to  the  death  of  the  assured ; 
provided  the  total  exemption  in  any  case  for  the  benefit  of 
any  one  person  shall  not  exceed  five  thousand  dollars.40 
This  exemption  is  not  merely  to  the  wife  and  children,  but 
embraces  heirs  generally.41  But  the  avails  of  a  policy  of 
insurance  are  not  exempted  from  the  debts  of  a  bene- 
ficiary when  such  beneficiary  is  a  person  other  than  the 
assured.42 

§  826.  Same — Of  exemptions  to  unmarried  per- 
sons.— There  is  exempt  to  an  unmarried  person,  not  the 
head  of  a  family,  and  to  non-residents,  their  own  ordinary 
wearing  apparel  and  trunks  necessary  to  contain  the 
same.43 

§  827.  Same— Of  the  head  of  the  family.— When 
the  debtor,  if  the  head  of  a  family,  has  started  to  leave  the 
State,  he  will  be  entitled  to  hold,  as  exempt  from  execu- 
tion, only  the  ordinary  wearing  apparel  of  himself  and  his 
family,  and  such  other  property  in  addition  as  he  may  se- 
lect, in  all  not  exceeding  seventy-five  dollars  in  value; 
which  property  must  be  selected  by  the  debtor  and  ap- 
praised according  to  the  provisions  of  section  3910  of  the 

40  Code,  Section  1805;  McClure  v.  49-185;    Friedlander    v.    Mahoney, 

Johnson,     56-620;     Stephenson    v.  31-311;    Kelley  v.  Mann,  56  Iowa, 

Stephenson,     64-534;     Mitchell     v.  625;  Phillips  v.  Carpenter,  79-600;. 

Grand  Lodge,  70-360;  Wilmaser  v.  In  re  Conrad's  Estate,  89-396. 

Continental   L.    Ins.    Co.,    66-417;  «  Larrabee  v.  Palmer,  70  N.  W.T 

Wendt  v.  Iowa  Legion  of  Honor,  100. 

72-682;     Rhode    v.    Bank,    52-375;  «  Murdy  v.  Skyles,    70     N.    W., 

Smedley  v.  Felt,  43-607;  Murray  v.  714. 

Weils,  53-256;  Herrimari  v.  McKee,  «  Code,  Sec.  4113. 


68  EXECUTIONS   AND   EXEMPTIONS.  [§  828. 

code.44     As  to  what  constitutes  starting  to  leave  the 
JState,45 

The  word  family,  does  not  include  strangers  or  board- 
ers.46 Ordinarily  by  the  head  of  the  family  is  meant  the 
husband  or  father,  but  one  may  be  such  without  being 
either  the  husband  or  father;  a  son  having  a  mother  and 
brothers  and  sisters,  or  either,  depending  on  him  for  sup- 
port and  living  in  a  household  controlled  by  him  may  be 
such  head;  and  so  may  a  mother  on  the  death  of  her  hus- 
band. The  party  claiming  the  exemption  as  the  head  of 
the  family  must  be  master  in  law  of  it.47  But  an  unmar- 
ried man  for  whom  his  brother  and  his  brother's  wife  kept 
house,  he  supplying  the  provisions,  etc.,  is  not  the  head 
of  the  family.48  But  a  widower  with  whom  lived  his  son 
and  his  son's  wife,  and  who  employed  a  household  servant, 
is  the  head  of  the  family.49  Where  the  husband  and  wife, 
having  no  children,  had  for  seven  years  prior  to  the  hus- 
band's death  lived  apart,  he  boarding  with  others  and  not 
contributing  to  his  wife's  support,  he  was  not  at  the  time 
of  his  death  the  head  of  the  family.50 

§  828.  When  exemptions  not  allowed  —  Of  ab- 
sconding, etc. — Any  person  coming  into  this  State  with 
the  intention  of  remaining  is  to  be  considered  a  resident 
within  the  meaning  of  the  exemption  laws.51  None  of  the 
exemptions  heretofore  referred  to  are  or  can  be  allowed 
against  an  execution  issued  for  the  purchase  money  of 
property  claimed  to  be  exempt,  and  on  which  such  execu- 
tion is  levied.52 

When  a  debtor  absconds  and  leaves  his  family,  his  prop- 
erty is  exempt  in  the  hands  of  his  wife  and  children,  or 
either  of  them.53  And  in  order  for  the  wife  to  obtain  the 
benefit  of  this  provision  of  the  statute,  the  departure  of 

«  Code,  Sec.  4014;  Graw  v.  Man-  see  Van  Doran  v.  Marden,  48-186. 

ning,  54-719;  Tubbs  v.  Garrison,  68  BO  Linton  v.  Crosby,  56-386. 

-44;  Cox  v.  Allen,  91-462.  si  Code,  Sec.  4014;  Cox  v.  Allen, 

«  Graw  v.  Manning,  54-719.  91-462. 

«  Code,  Sec.  4112.  52  Code,    Sec.    4015;    Mitchell    v. 

*f  Whalen  v.  Cadman,  11-226.  Joyce,  69-121. 

« Same  as  No.  47.  »s  Code,    Sec.   4016;     Waugh     v. 

«  Tyson    v.     Reynolds,     52-431;  Bridgeford,  69-334. 


§  829.]  EXECUTIONS   AND   EXEMPTIONS.  69 

the  husband  need  not  be  without  her  knowledge  or  con- 
sent.54 

Proceeds  of  a  voluntary  sale  of  exempt  property  are  not 
exempt  from  execution.55  When  a  husband  abandons  his 
wife,  leaving  in  her  hands  exempt  property,  she  may  dis- 
pose of  it  as  she  pleases,  as  it  is  exempt  in  her  hands.5* 
If  the  debtor  is  to  select  an  animal  to  be  held  as  exempt, 
written  notice  to  do  so  may  be  served  on  her  by  the  sheriff 
claiming  it.57  Under  prior  laws  it  was  held  that  a  volun- 
tary surrender  of  property  would  be  a  waiver  of  the  ex- 
emption.58 Under  the  existing  law  it  is  provided  that  one 
entitled  to  the  exemption  does  not  waive  it  by  failing  to 
designate  the  exempt  property  or  to  object  to  a  levy 
thereon  unless  he  neglects  to  do  so  when  required  in  writ- 
ing by  an  officer  about  to  levy.59  But  a  mere  failure  to 
assert  the  claim  when  the  property  is  seized  will  not  al- 
ways be  a  waiver.60  An  exemption  can  not  be  waived  in  a 
note,  but  it  is  held  otherwise  as  to  a  lease  covering  ex- 
empt property.61  A  partner  can  not  hold  partnership 
property  exempt.62 

§  829.  Of  other  exemptions. — Where  an  article  be- 
longing to  the  realty  is  wrongfully  severed  from  it,  it  is 
still  exempt  from  execution  in  case  it  was  so  before  sev- 
erance.63 Public  buildings  owned  by  the  State  or  by 
any  county,  city,  school  district,  or  other  municipal  cor- 
poration, or  any  other  public  property  which  is  neces- 
sary and  proper  for  carrying  out  the  general  purposes 
for  which  such  corporations  are  organized,  are  exempt 
from  execution,  and  the  property  of  a  private  citizen  can 
in  no  case  be  levied  on  to  pay  any  debt  of  such  corpora- 
tion.64 A  judgment  against  a  city  is  not  a  lien  upon 

54  Malvin  v.  Christoph,  54-562.  et>  Gunsel  v.  McDowell,  67-521. 

ss  Harrier  v.  Fassett,  56-264.  «i  Curtis  v.  O'Brien,  20-376;  Fe- 

sewaugh  v.  Eridgeford,  69-334;  javary  v.  Broesch,  52-88. 

see  Malvin    v.  Christoph,    54-562;  62  Van  Stadden  v.  Kline,  64-180. 

Rawson  v.  Spangler,  62-59.  .  es  Congregational       Society      T. 

57  Malvin    v.    Christoph,    54-562;  Fleming,  11-533. 

Code.  Sec.  4017;   Glover  v.  Narey,  encode,  Sec.  4007;    Whiting    r. 

92-286.  Story  County,  54-81;  Davenport  v. 

ss  Richard  v.  Haines,  30-574.  Peoria  F.   &   M.    Ins.    Co.,   17-276; 

sa  Code,  Sec.  4017;   Ellsworth  v.  Fort  Dodge  v.  Moore,  37-389;  Lewis 

Savre,  67-449.  v.  Chickasaw  County.,  50-234;  Lor- 


70  EXECUTIONS    AND    EXEMPTIONS.  [§§  S30,  831. 

premises  owned  by  it  and  used  for  a  hospital.65     Insur- 
ance money  is  by  statute  exempt  from  execution.66 

§  830.  Of  waiver  of  right  of  exemption. — Any 
person  entitled  to  any  of  the  exemptions  provided  by  sec- 
tion 4008  of  the  code  does  not  waive  his  rights  by  failing 
to  designate  or  select  such  exempt  property,  or  by  failing 
to  object  to  a  levy  thereon,  unless  failing  or  refusing  so 
to  do  when  required  in  writing  to  make  such  designation 
or  selection  by  the  officer  about  to  levy.67  A  waiver  of 
exemption  laws  contained  in  a  promissory  note  will  not, 
when  judgment  is  obtained  thereon,  entitle  plaintiff  to 
have  execution  levied  on  property  exempt  from  execu- 
tion.68 Under  the  former  law,  if  the  owner  of  exempt 
personal  property  was  present  at  the  levy  and  permitted 
the  property  to  be  taken,  without  objection,  he  was 
deemed  to  have  waived  his  right  of  exemption,  and  was 
estopped  from  afterward  asserting  it.69  When  it  ap- 
pears that  the  debtor  has  the  right  to  select  one  of  sev- 
eral vehicles  as  exempt,  and  such  selection  was  made 
before  levy,  it  should  be  respected  by  the  officer.70 

§  831.  Of  securing  the  claims  of  laborers  of  in- 
solvent corporations,  etc. — When  the  property  of  any 
company,  corporation,  firm  or  person  is  seized  upon  by 
any  process  of  any  court,  or  placed  in  the  hands  of  a 
receiver,  trustee,  or  assignee  for  the  purpose  of  paying 
or  securing  the  payment  of  the  debts  of  such  company, 
corporation,  firm,  or  person,  the  debts  owing  to  em- 
ployes for  labor  performed  within  the  ninety  days  next 
preceding  the  seizure  or  transfer  of  such  property,  to 
an  amount  not  exceeding  one  hundred  dollars  to  each 
person,  are  preferred  debts  and  will  be  paid  in  full,  or  if 

ing  v.  Small,  50-271;   Charnock  v.  worth  v.  Savre,  67-449;  see  Angell 

Dist.  Twp.,  51-70.  v.  Johnson,  51-625;    Mofflt  v.   Ad- 

es  Davenport  v.  Peoria  F.  &  M.  ams,  60-44;    Glover  v.   Narey,  92- 

Ins.  Co.,  17-276.  286. 

ee  Code,  Sec.   1805;    but  see  Me-  es  Curtis  v.  O'Brien,  20-376. 

Clure  v.  Johnson,  56-620;   Smedley  69  Angell     v.     Johnson,     51-625; 

v.   Fell,  43-607;    Murray  v.   Wells,  Moffit  v.  Adams,     60-44;    Green  v. 

53-256;  Friedlander    v.    Mahoney,  Blunt,  59-79. 

31-311.  70  Parker  v.  Haley,  60-325. 

67  Code,  Sees.    4008,4017;    Ells- 


§  832.]  EXECUTIONS    AND   EXEMPTIONS.  71 

there  is  not  sufficient  realized  from  such  property  to  pay 
the  same  in  full,  then  after  the  payment  of  costs,  ratably 
out  of  the  fund  remaining,  but  such  preferences  shall  be 
junior  and  inferior  to  mechanics'  liens  for  labor  in  open- 
ing and  developing  coal  mines.71 

Any  employe  desiring  to  enforce  his  claim  for  wages 
at  any  time  after  the  seizure  of  the  property  under  exe- 
cution or  writ  of  attachment  and  before  sale  thereof  is 
ordered,  must  present  to  the  officer  levying  on  such  prop- 
erty or  to  such  receiver,  trustee  or  assignee,  or  to  the 
court  having  custody  of  such  property,  or  from  which 
such  process  issued,  a  statement  under  oath  showing  the 
amount  due  after  allowing  all  just  credits  and  set-offs, 
and  the  kind  of  work  for  which  such  wages  are  due,  and 
when  performed,  and  unless  objection  be  made  thereto 
as  provided  in  the  following  section,  such  claim  must  be 
allowed  and  paid  to  the  person  entitled  thereto,  after 
first  paying  all  costs  occasioned  by  the  proceeding  out  of 
the  proceeds  of  the  sale  of  the  property  so  seized  or 
placed  in  the  hands  of  a  receiver,  trustee,  or  assignee, 
subject  to  the  provisions  of  the  preceding  section.72 

Any  person  interested  may  contest  any  claim  or  any 
part  thereof  by  filing  objections  thereto  supported  by 
affidavit  with  such  court,  receiver,  trustee,  or  assignee, 
and  its  validity  must  be  determined  in  the  same  way  the 
validity  of  other  claims  are  which  are  sought  to  be  en- 
forced against  such  property.73 

Claims  of  employes  for  labor  if  not  contested,  or  if 
allowed  after  contest,  will  have  priority  over  all  claims 
against,  or  liens  upon  property,  except  prior  mechanics' 
liens  for  labor  in  opening  or  developing  coal  mines  as 
allowed  by  law.74 

§  832.  Of  depriving  persons  of  the  benefit  of  the 
exemption  laws. — If  any  person,  with  intent  to  deprive 
a  resident  in  good  faith  of  this  State  of  the  benefit  of  the 
exemption  laws  thereof,  sends  a  claim  against  such  resi- 

71  Code,  Sec.  4019.  73  Code,  Sec.  4021. 

72  Code,  Sec.  4020.  74  Code,  Sec.  4022. 


72  EXECUTIONS   AND   EXEMPTIONS.  [§§  833,  834. 

dent  and  belonging  to  a  resident,  to  another  State  for 
action,  or  causes  action  to  be  brought  on  such  claim  in 
another  State,  or  assigns  or  transfers  such  claim  to  a 
non-resident  of  the  State  with  intent  that  action  thereon 
be  brought  in  the  courts  of  another  State,  the  action  in 
either  case  being  one  which  might  have  been  brought  in 
this  State,  and  the  property  or  debt  sought  to  be  reached 
by  such  action  being  such  as  might,  but  for  the  exemption 
laws  of  this  State,  have  been  reached  by  action  in  the 
courts  of  this  State,  he  is  guilty  of  a  misdemeanor  and 
may  be  punished  by  a  fine  of  not  less  than  ten  nor  more 
than  fifty  dollars.75 

§  833.  Of  exchange  of  exempt  property,  liens, 
etc. — When  property  which  is  exempt  is  exchanged  for 
property  not  by  law  exempt,  the  latter  is  liable  for  the 
owner's  debts.76  If  exempt  property  is  converted  into 
a  money  claim  against  the  will  of  the  owner,  it  seems 
that  such  money  will  be  exempt  for  a  reasonable  time.77 
The  statute  as  to  exemptions  does  not  prevent  the  at- 
tachment of  other  liens  recognized  by  law,  such  as  inn- 
keepers' liens.78  A  mortgagor  of  exempt  property  may 
maintain  an  action  for  a  wrongful  levy  thereon.79 

§  834.  Of  the  construction  of  the  statute,  remedy, 
etc. — It  is  the  policy  of  courts  to  construe  exemption 
laws  with  great  liberality.80  And  when  property  ordi- 
narily exempt,  ip  levied  on,  on  the  ground  that  the  owner 
is  about  to  leave  the  State,  the  owner,  in  an  action 
against  the  officer  for  the  wrongful  conversion  of  the 
property,  is  not  estopped  by  his  declarations  of  intention 
previously  made,  and  evidence  of  such  declarations  is 
not  admissible  against  him  unless  made  at,  after,  or  so 
near  the  time  of  starting,  as  to  be  a  part  of  the  res 
gesta.81  And  in  such  a  case  it  is  not  competent  for  the 

75  Code,  Sec.     4018;     Willard   v.  "  Swan     v.     Bournes,      47-501; 
Sturm,  65  N.  W.,  847.  Munson  v.  Porter,  63-453. 

76  Friedlander    v.    Mahoney,  31-  ™  Evans  v.  St.  Paul,  etc.,  63-204. 
311.  so  Bevan  v.  Haydcn,  13-122;  Dav- 

TT  Kaiser      v.      Seaton,    62-463;      is  v.  Humphrey,  22-137;  Kaiser  v. 
Mudge  v.  Lanning,  68-641.  Seaton,  62-463. 

si  Tubbs  v.  Garrison,  68-44. 


§  834.]  EXECUTIONS    AND    EXEMPTIONS.  73 

officer  to  show  that  he  was  informed,  before  making  the 
levy,  that  plaintiff  had  left  the  State.82  The  exemption 
of  property  from  sale  on  execution  relates  to  the  remedy 
and  is  governed  by  the  lex  fori  and  not  by  the  lex  loci 
contractus;  hence,  if  the  remedy  is  sought  in  this  State, 
our  laws  govern.83 

»2  Same  as  No.  81.  U.  P.  R.  Co.,  60-346;  Leiber  v.  U.  P. 

ss  Newell  v.  Hayden,  8-140;  Hel-  R.  Co.,  49-688;  Burlington  &  M.  R. 

fensteinv.  Cave,  3-287;  Smith  v.  C.  Co.  v.  Thompson,  31  Kan.,  180; 

&  N.  W.  R.  Co.,  60-312;  Mooney  v.  Broadstreet  v.  Clarke,  65-670. 


CHAPTER  L. 

OF  PROCEEDINGS  AUXILIARY  TO  EXECUTION. 

Sec.  835.  Of  proceedings  after  execution  is  returned. 

836.  Of  proceedings  before  execution  is  returned. 

837.  Of  granting  the  order. 

838.  Of  the  examination  of  the  debtor. 

839.  Of  power  of  the  court  or  officer  on  the  hearing. 

840.  Of  disposal  of  equitable  interests  in  lands. 

841.  Of  debtor  in  contempt. 

842.  When  a  warrant  of  arrest  will  issue. 

843.  When  the  debtor  may  give  bond. 

844.  Of  the  effect  of  the  statute. 

845.  Of  compensation  of  officers,  etc. 

846.  Of  actions  by  equitable  proceedings. 

847.  Of  the  petition  in  equity  supplemental  to  execution. 

848.  Of  the  answers. 

849.  Of  the  lien. 

850.  Of  enforcing  surrender  of  property. 

Section  835.  Of  proceedings  after  execution  is  re- 
turned.— When  an  execution  against  the  property  of  a 
judgment  debtor,  or  one  of  several  judgment  debtors  on 
the  same  judgment,  has  been  issued  from  the  superior  dis- 
trict or  supreme  court  to  the  sheriff  of  the  county  where 
such  debtor  resides,  or,  if  he  does  not  reside  in  the  State, 
to  the  sheriff  of  the  county  where  the  judgment  was  ren- 
dered, or  a  transcript  of  a  justice's  judgment  has  been 
filed,  and  execution  issued  thereon  is  returned  unsatis- 
fied, in  whole  or  in  part,  the  owner  of  the  judgment  is 
entitled  to  an  order  for  the  appearance  and  examination 
of  such  debtor.1  The  following  form  may  be  used  in  this 
case: 

i  Code,  Sec.  4072;  Osborn  v.  Reardon,  79-175;  Reardon  v.  Hen- 
ry, 82-134. 

74 


§836.]  PROCEEDINGS   AUXILIARY    TO    EXECUTION.  75 


FORM  OF  PETITION  FOR  EXAMINATION  OF  JUDGMENT  DEBTOR. 

Title,  | 
Venue.  ) 

The  plaintiff  states: 

1.  That   judgment  was  rendered   in  this   court  in   favor   of   the 
plaintiff  and  against  the  defendant,  —     — ,  on  the  —      —  day  of  -     — » 

18 — ,  for  the  sum  of  -       -  dollars,  said  judgment  drawing  per 

cent,  interest  from  date  of  its  rendition,  and  for  costs. 

2.  That  an  execution  was  duly  issued  on  said  judgment,  on  the 
-  day  of ,  18 — ,  against  the  property  of  the  said  defendant 

in  the  county  of ,  Iowa,  which  has  been  returned  by  the  sheriff 

of  said  county  wholly  (or  partly,  as  the  case  may  be)  unsatisfied. 

3.  That  said  defendant  resides  in  said  county  of ,  Iowa. 

Wherefore  plaintiff  asks  that  an  order  issue  for  the  appearance 

and  examination  of  said  defendant. 

,  plaintiff. 

(Add  verification). 

(The  petition  may  be  signed  by  attorney  and  verified  by  plaintiff 
or  his  agent,  or  attorney,  if  they  show  proper  knowledge  of  the  facts.) 

§  836.    Of  proceedings  before  execution  is  returned. 
—The  same  kind  of  an  order  may  be  obtained  at  any  time 
after  the  execution  has  been  issued,  upon  proof,  by  affida- 
vit of  the  party  or  otherwise,  to  the  satisfaction  of  the 
court  or  judge  who  is  to  grant  the  same,  that  any  judg- 
ment debtor  has  property  which  he  unjustly  refuses  to 
apply  toward  the  satisfaction  of  the  judgment.2    A  second 
examination  without  a  new  affidavit  may  be  held  to  be  a 
continuation  of  an  examination  previously  had.3 
Such  affidavit  may  be  in  the  following  form: 

FORM  OF  AFFIDAVIT  FOR  ORDER  BEFORE  RETURN  OF  EXECU- 
TION. 

Title, 
Venue. 

State  of  Iowa, 
County.  y' 

I, ,  being  duly  sworn,  depose  and  say  that  I  am  the  plaintiff 

In  the  above  entitled  action;   that  judgment  was  rendered  thereon  in 

my   favor   and   against  said   ,   defendant,   on   the  day  of 

,  18 — ,  in  this  court  for  dollars,  drawing  per  cent. 

interest  from  date  of  its  rendition,  and  for  costs. 

2  Code,  Sec.  4073.  3  McDonnell  v.   Henderson,  74- 

619. 


?G  PBOCEEDIXGS   AUXILIARY   TO   EXECUTION.  [§  837. 

That  on  the day  of ,  18 — ,  an  execution  was  issued  on 

said  judgment  directed  to  the  sheriff  of  said  county;  that  said  de- 
fendant is  a  resident  of  said  county,  (or  if  of  another  county  so  state), 
and  that  he  has  property  therein  which  he  unjustly  refuses  to  apply 
toward  the  satisfaction  of  said  judgment. 


(Add  verification.) 

(This  affidavit  may  be  sworn  to  before  any  officer  having  authority 
to  administer  an  oath.) 

The  proceedings  treated  of  in  this  chapter  are  not  ex- 
clusive for  the  purpose  of  discovering  a  judgment  debtor's 
property  and  subjecting  it  to  execution  in  satisfaction  of 
the  judgment,  but  it  is  a  proceeding  at  law  additional  to 
the  remedy  provided  in  equity.  Before  it  can  be  made 
available  there  must  be  a  judgment  or  order  enforceable 
by  execution.  And  it  has  been  held  that  an  order  that 
an  execution  issue  against  a  corporation,  with  a  clause 
inserted  therein  directing  that  it  shall  be  levied  upon  the 
property  of  certain  stockholders,  does  not  render  such 
stockholders  judgment  debtors  within  the  meaning  of  the 
statute,  and  they  can  not  be  compelled,  after  the  return  of 
such  an  execution,  to  disclose  property  in  the  summary 
manner  provided  by  this  statute,  as  there  is  no  judgment 
against  them  individually.4 

§  837.  Of  granting  the  order. — The  order  may  be 
made  by  the  superior  or  district  court  of  the  county  in 
which  the  judgment  was  rendered,  or  by  the  district  court 
of  the  county  to  which  execution  has  been  issued,  or  in 
vacation  by  a  judge  of  said  court,  and  it  may  require  the 
debtor  to  appear  and  answer  before  such  court,  or  judge, 
or  before  a  referee  appointed  for  that  purpose  by  the  court 
or  judge  issuing  the  order,  to  report  either  the  evidence 
or  the  facts.5  It  may  be  in  the  following  form : 

Title,  J 
Venue,  f 

It  appearing  to  the  undersigned  by  the  petition  (or  affidavit,  as 
the  case  may  be)  that  a  judgment  has  been  rendered  (here  recite  the 
statements  of  the  petition  or  affidavit).  Therefore,  in  the  name  of  the 
State  of  Iowa,  you,  the  said  defendant,  are  hereby  commanded  to 

*  Code,  Sees.  4072,  4073;  Bailey  B  Code,  Sec.  4074. 

v.  The  D.  W.  R.  Co.,  13-97. 


§§  838-9.]       PROCEEDINGS   AUXILIARY    TO    EXECUTION".  77 

appear  before   (the  court,  judge  or  referee,  as  the  case  may  be),  at 

the  (fix  the  town  or  city)  in county,  on  the  —      —  day  of , 

18 — ,   at  ,   o'clock  — .   M.,   to   make   discovery   concerning   your 

property. 

Dated  the day  of ,  18—. 

(Signature  of  judge). 

If  the  order  issues  when  the  court  is  in  session  it  should 
be  under  the  hand  of  the  clerk  and  seal  of  the  court,  and 
in  such  case  the  order  should  read  as  of  the  court,  instead 
of  the  judge. 

§  838.  Of  the  examination  of  the  debtor. — As  has 
been  seen  the  examination  may  be  had  before  the  court, 
judge  or  referee  appointed  for  that  purpose.6  The  debtor 
may  be  interrogated  in  relation  to  any  facts  calculated  to 
show  the  amount  of  his  property  or  the  disposition  he  has 
made  of  it,  or  any  other  matter  pertaining  to  the  purpose 
for  which  the  examination  is  permitted  to  be  made,  and 
the  interrogatories  and  answers  must  be  reduced  to  writ- 
ing, and  preserved  by  the  court  or  officer  before  whom 
they  are  taken.  All  examinations  and  answers  must  be 
under  oath,  and  no  person  on  such  examination  is  excused 
from  answering  any  question  on  the  ground  that  his  ex- 
amination wrill  tend  to  convict  him  of  a  fraud,  but  his 
answers  can  not  be  used  in  evidence  against  him  on  a 
prosecution  for  such  fraud.7  Witnesses  may  be  required 
by  the  order  of  the  court  or  judge,  or  by  subpoenas  from 
the  referee,  to  appear  and  testify  upon  such  examination 
in  the  same  manner  as  upon  the  trial  of  an  issue.8 

§  839.  Of  power  of  the  court  or  officer  upon  the 
hearing. — If  any  property,  rights  or  credits  subject  to 
execution  are  found  on  the  examination,  an  execution 
may  be  issued;  and  the  same  be  levied  thereon  as  in  other 
cases.  The  court  or  judge  may  order  any  property  of  the 
judgment  debtor  not  exempt  by  law  in  the  hands  of  him- 
self, or  of  any  other  person  or  corporation,  or  due  to  the 
judgment  debtor,  to  be  delivered  up  or  in  any  other  mode 

•  Code,  Sec.  4074.  s  Code,  Sec.  4076;  McDonnell  v. 

T  Code,  Sec.  4075;  see  Parks  v.      Henderson,  74-619. 
Johnson,  86-475. 


78  PROCEEDINGS   AUXILIARY    TO    EXECTTiOX.  [§  840. 

applied  toward  the  satisfaction  of  the  judgment.9  But 
such  an  order  should  not  be  made  when  the  ordinary 
processes  of  law  are  adequate  for  the  subjugation  of  the 
property  to  the  payment  of  the  debt10  The  object  of  this 
proceeding  is  to  obtain  an  order  for  the  payment  of  the 
debt,  and  not  alone  to  settle  the  right  of  the  creditor  to 
the  application  of  the  proceeds  of  a  certain  fund.11  It  has 
been  held,  however,  that  the  provisions  of  the  law,  in  so 
far  as  they  purport  to  confer  upon  the  examining  officer 
the  power  to  order  any  property  in  the  hands  of  the  judg- 
ment debtor,  or  of  others,  to  be  delivered  up  and  applied 
in  satisfaction  of  the  judgment  under  which  the  proceed- 
ings are  had,  and  the  further  power  to  punish,  as  for  con- 
tempt, any  disobedience  of  any  order  made  by  the  exam- 
ining officer,  are  repugnant  to  sections  9  and  10  of  article  1 
of  the  constitution,  and  therefore  void.  But  this  decision 
has  been  overruled  and  the  present  law  held  constitu- 
tional.12 The  court  or  judge  may  also,  by  order,  appoint 
the  sheriff  of  the  proper  county,  or  other  suitable  person, 
a  receiver  of  the  property  of  the  debtor,  and  may  also,  by 
order,  forbid  a  transfer  or  other  disposition  of  the  prop- 
erty of  the  judgment  debtor  not  exempt  by  law,  or  may 
forbid  any  interference  therewith.  The  court,  judge  or 
referee  has  power  to  continue  his  proceedings  from  time 
to  time  until  they  shall  be  completed.13 

§  840.  Of  disposal  of  equitable  interests  in  land 
—If  it  appears  on  the  hearing  that  the  judgment  debtor 
has  any  equitable  interest  in  real  estate  in  the  county  in 
which  the  proceedings  are  had,  as  mortgagor,  mortgagee, 
or  otherwise,  and  the  interest  of  the  debtor  can  be  ascer- 
tained, as  between  himself  and  the  person  holding  the 
legal  estate,  or  having  any  lien  on  or  interest  in  the  same, 
without  controversy  as  to  the  interest  of  such  person, 
the  receiver  may  be  ordered  to  sell  and  convey  such  real 
estate,  or  the  debtor's  equitable  interest  therein,  in  the 

9  Code,  Sec.  4077.  berry  v.  Edwards,  67-621;   Farmer 

loReardon  v.  Henry,  82-134.  v.    Hoffman.    67-678;    Marriage    v. 

11  Ex  par*"  Grace,  12-208.  Woodruff.  77-291. 

12  Ex  parte  Grace,  12-208;  Eiken-          is  Code,  Sec.  4081. 


§§  841-3.]      PROCEEDINGS   AUXILIARY    TO    EXECUTION.  79 

same  manner  as  is  provided  by  law  for  the  sale  of  real 
estate  on  execution.14  And  if  the  sheriff  is  appointed  re- 
ceiver, he  and  his  sureties  will  be  liable  on  his  official  bond 
for  the  faithful  discharge  of  his  duties  as  such  receiver.16 

§  841.  Of  debtor  in  contempt. — If  the  judgment 
debtor  fails  to  appear  after  being  personally  served  with 
notice  to  that  effect,  or  if  he  fails  to  make  full  answers  to 
all  proper  interrogatories  propounded  to  him,  he  will  be 
guilty  of  contempt,  and  may  be  arrested  and  imprisoned 
until  he  complies  with  the  requirements  of  the  law  in  this 
respect.  And  if  any  person,  party  or  witness  disobey  an 
order  of  the  court,  or  judge,  or  referee,  duly  served,  such 
person,  party  or  witness  may  be  punished  as  for  con- 
tempt,16 The  order  mentioned  must  be  in  writing,  and 
signed  by  the  court,  or  judge,  or  referee  making  the  same, 
and  must  be  served  as  an  original  notice  in  other  cases.17 
If,  however,  a  party  is  present  and  has  had  an  opportunity 
to  be  heard,  it  need  not  appear  that  he  has  been  served 
with  the  order  contemplated  by  the  statute.18 

§  842.  When  a  warrant  of  arrest  will  issue. — Upon 
proof  to  the  satisfaction  of  the  court,  or  judge  authorized 
to  grant  the  order,  that  there  is  danger  that  the  defendant 
will  leave  the  state,  or  that  he  will  conceal  himself,  the 
court  or  judge,  instead  of  issuing  the  order,  may  issue  a 
warrant  for  the  arrest  of  the  debtor  and  for  bringing  him 
forthwith  before  the  court  or  judge  authorized  to  take 
his  examination;  and  after  he  is  thus  brought  before  said 
court  or  judge  he  may  be  examined  in  the  same  manner 
and  with  like  effect  as  heretofore  stated.19  And  this  war- 
rant may  be  issued  by  a  referee  appointed  by  the  court 
to  examine  the  judgment  debtor.20 

§  843.  When  the  debtor  may  give  bond. — On  being 
brought  before  the  court  or  judge  he  may  enter  into  an 

"Code,  Sec.  4079.  134;   Esty  v.  Fuller  Impt.  Co.,  82- 

18  Code,  Sec.  4080.  678. 

«  Code,  Sec.  4082;  Eikenberry  v.  17  Code>  Sec-  4083- 

Edwards,  67-621;    Farmer  v.  Hoff-  61"  McDonne11  v.   Henderson,  74- 

man,  67-678;     Marriage    v.  Wood-  10  Code,  Sec.  4085. 

ruff,  77-291;  Reardon  v.  Henry,  82-  20  Marriage  v.  Woodruff,  77-291. 


80  PROCEEDINGS   AUXILIARY   TO   EXECUTION.      [§§  844-6. 

undertaking  in  such  sum  as  the  court  or  judge  shall  pre- 
scribe, with  one  or  more  sureties,  that  he  will  attend  from 
time  to  time  for  examination  before  the  court,  or  judge, 
as  shall  be  directed,  and  will  not  in  the  meantime  dispose 
of  his  property  or  any  part  thereof,  in  default  of  which  he 
shall  continue  under  arrest  and  may  be  committed  to  jail 
on  the  warrant  of  such  court,  or  officer,  from  time  to  time, 
for  safe  keeping  until  the  examination  is  concluded.21 

§  844.  Of  the  effect  of  the  statute. — It  was  held  by 
the  supreme  court  that  the  provisions  of  chapter  126  of 
the  revision,  and  which  are  almost  identical  with  the  law 
now  under  consideration,  were  unconstitutional.22  But 
recently  the  present  law  has  been  construed  by  the  su- 
preme court  and  held  constitutional,  though  Beck  and 
Adams,  justices,  dissent.23 

§  845.  Of  compensation  of  officers,  etc. — Sheriffs, 
referees,  receivers  and  witnesses  receive  such  compensa- 
tion as  is  allowed  for  like  services  in  other  cases,  to  be 
taxed  as  costs  in  the  case,  and  the  collection  thereof  from 
such  party  or  parties  as  ought  to  pay  the  same  may  be 
enforced  by  an  order  or  execution.24 

§  846.  Of  actions  by  equitable  proceedings. — At 
any  time  after  the  rendition  of  a  judgment  an  action  by 
equitable  proceedings  may  be  brought  to  subject  any 
property,  money,  rights,  credits  or  interest  therein  be- 
longing to  the  defendant,  to  the  satisfaction  of  the  judg- 
ment, and  in  such  action  persons  indebted  to  the  judg- 
ment debtor,  or  holding  any  property  or  money  in  which 
such  debtor  has  any  interest,  or  the  evidences  of  sureties 
for  the  same,  may  be  made  defendants.25  Under  the  re- 
vision of  1860  it  was  necessary  to  issue  execution  on  the 
judgment  and  have  it  returned  unsatisfied,  either  in  whole 
or  in  part,  for  want  of  property  of  the  judgment  debtor  to 

21  Farmer    v.    Hoffman,     67-678;       621;  Farmer  v.    Hoffman,    67-678; 
Code,   Sec.   4086;    Ex  parte  Grace,      Marriage  v.  Woodruff,  77-291. 
12-208;  Eikenberry  v.  Edwards,  67-          2^  Code,  Sec.  4084. 

621.  2.1  Code,  Sec.  4087;    Rridgman  v. 

22  Ex  parte  Grace,  12-208.  McKissick.  15-260;   Faivre  v.  Gill- 

23  Eikenberry    v.    Edwards     67-      man,  84-573. 


§  847.]  PROCEEDINGS   AUXILIARY   TO    EXECUTION.  81 

satisfy  the  same  before  this  proceeding  could  be  com- 
menced.26 In  the  absence  of  a  holding  that  it  is  not  neces- 
sary to  issue  execution  and  have  it  returned  unsatisfied 
before  bringing  this  action,  the  safer  practice  is  to  do  so.27 
But  it  is  held  that  the  lien  of  a  judgment  attaches  to  an 
equitable  interest  in  real  estate,  and  it  may  be  subjected 
to  the  satisfaction  of  the  judgment  by  proceedings  in 
equity  for  that  purpose,  and  a  junior  judgment  creditor  by 
first  instituting  his  proceedings  in  equity  to  subject  the 
property  to  the  payment  of  his  debt  thus  acquires  a  pri- 
ority over  the  senior  judgment  creditor  who  is  less  dili- 
gent.28 This  action  can  only  be  maintained  after  a  judg- 
ment has  been  recovered.29  By  this  proceeding  he  ac- 
quires a  lien  on  the  property.30  The  notice  and  copy  of  the 
petition  must  be  served  or  a  lien  will  not  be  effected.31 

§  847.    Of  the  petition  in  equity  supplemental  to 
execution, 

FORM   OP   PETITION   IN   EQUITY   SUPPLEMENTAL  TO    EXECU- 
TION. 
Title,  ) 
Venue.  ) 

Par.  1.  Plaintiff  states:  That  on  the  day  of  ,  18 — , 

judgment  was  rendered  in  the  (name  of  court)  in  his  favor  and  against 
the  defendant  for dollars  and  costs. 

Par.  2.  That  on  the  day  of  ,  18 — ,  an  execution  was 

issued  on  said  judgment  directed  to  the  sheriff  of  county, 

Iowa,  in  which  the  defendant  resided,  and  the  same  has  been  re- 
turned wholly  unsatisfied,  and  no  property  of  said  defendant  sub- 
ject to  execution  could  be  found  in  said  county  on  which  to  levy, 
and  said  judgment  is  wholly  unsatisfied. 

Par.  3.  That  said  defendant,  ,  on  the  day  of  , 

18 — ,  (before  judgment  was  rendered)  was  the  owner  of  the  following 
described  real  (or  personal)  property,  to  wit,  (here  describe  it)  and 
did  make  a  pretended  conveyance  (or  sale)  of  the  same  to  the  said 

— ,  defendant,  with  the  intent  to  hinder,  delay  and  defraud  plaintiff 

in  the  collection  of  his  said  judgment,  and  the  said  ,  defendant, 

took  such  conveyance  (or  made  such  purchase)  with  the  like  intent 
and  without  any  consideration  paid  therefor. 

28  Revision,  Sec.  3150;    see  Lov-  20  Faivre     v.     Gillman,     84-573; 

ing  v.  Pairo,  10-282,  289.  Ware  v.  Delahaye,  64  N.  W.,  640. 

27  McCormick  Harv.  Mch.  Co.  v.  so  Falker  v.  Linehan,  88-641. 

Gates,  75-343.                                  .  «i  Ware  v.  Delahaye,  64  N.  W., 

zs  Bridgman    v.    McKissick,    15-  640. 
260. 

Vol.  II-6 


83  PROCEEDINGS    AUXILIARY    TO    EXECUTION.  [§§    848J50. 

/ 
Par.  4.     That  said  defendant,  ,  is  indebted  to  the" 

— ,  in  the  sum  of dollars  upon  a  negotiable  promissory  note 


which   is  now  held   by  the  said  ,   defendant,   dated  the   

day  of  ,  18 — ,  payable  on  the  -        -  day   of  -     — ,  18 — ,   and 

given  for  $1,000  and  drawing  -  -  per  cent,  interest  from  date  (or 
state  that  he  holds  money  or  property  or  securities  belonging  to  the 
debtor,  or  in  which  he  has  an  interest,  and  state  how  he  is  indebted, 
as  that  the  judgment  debtor  has  made  an  assignment  for  the  benefit 
of  creditors,  which  was  done  to  defeat,  delay  and  defraud  plaintiff,  etc.). 

Wherefore  plaintiff  asks  that  said  conveyance  (or  sale  or  assign- 
ment) be  decreed  and  adjudged  to  be  fraudulent  and  void  as  against 

him;    that  the  said  defendants,   and  ,   be   compelled    to 

account,  under  the  direction  of  the  court,  for  all  money,  property, 
securities,  etc.,  and  surrender  the  same,  under  the  directions  of  the 
court,  and  that  plaintiff's  judgment  may  be  satisfied  out  of  the  same, 
together  with  the  costs  of  this  proceeding. 

,  attorney  for  plaintiff. 

(Add  verification.) 

§  848.  Of  the  answers. — The  answers  of  all  the  de- 
fendants must  be  verified  by  their  own  oath  and  not  by 
that  of  an  agent  or  attorney,  and  the  court  must  enforce 
full  and  explicit  discoveries  in  the  answers  by  process  of 
contempt,  or  upon  failure  to  answer  the  petition,  or  any 
part  thereof,  as  fully  and  explicitly  as  the  court  may  re- 
quire; the  same,  or  such  part  not  thus  answered,  will  be 
deemed  true,  and  such  order  made  or  judgment  rendered 
as  the  nature  of  the  case  may  require.32 

§  849.  Of  the  lien. — Plaintiff  will  acquire  a  lien  on 
the  property  of  the  judgment  debtor,  or  his  interest  there- 
in, in  the  hands  of  any  defendant,  or  under  his  control, 
which  is  sufficiently  described  in  the  petition,  from  the 
time  of  the  service  of  notice  and  a  copy  of  the  petition  on 
the  defendant  holding  or  controlling  such  property,  or 
any  interest  therein.33  An  ordinary  original  notice,  with 
a  copy  of  the  petition,  must  be  served  on  the  defendants, 
to  which  they  must  appear  and  plead  in  the  time  pre- 
scribed for  pleading  in  equitable  actions.34 

§  850.  Of  enforcing  surrender  of  property. — The 
court  must  enforce  the  surrender  of  the  money,  or  securi- 

«  Code,  Sec.  4088.  Douglass.  89-150;  Ware  v.  Purdy, 

ss  Code,     Sec.     4089;     Boggs     v.      60  N.  W.,  526. 

34  Code,  Sec.  4088. 


§  850.]  PROCEEDINGS    AUXILIARY   TO    EXECUTION.  83 

ties  therefor,  or  of  any  other  property  of  the  defendant  in 
the  execution  which  may  be  discovered  in  the  action,  and 
for  this  purpose  may  commit  to  jail  any  defendant  or 
garnishee  failing  or  refusing  to  make  such  surrender  until 
it  shall  be  done,  or  the  court  is  satisfied  that  it  is  out  of 
his  power  so  to  do.35  And  the  provisions  of  the  law  relat- 
ing to  equitable  proceedings  apply  as  well  to  equities  of 
the  debtor  in  real  property  as  to  moneys,  choses  in  action 
or  other  personal  property,  but  as  to  real  property  the 
remedy  is  merely  cumulative.36 

35  Code,  Sec.  4090.  as  Bridgman  v.    McKissick,    15- 

260. 


CHAPTEE  LI. 


Sec.  851.  When  an  action  of  right  will  lie. 

852.  When  an  action  to  quiet  title  will  lie. 

853.  Of  the  parties. 

854.  Of  proceedings  in  an  action  to  recover  real  property. 

855.  Of  proceedings  in  an  action  to  quiet  title. 

856.  Of  service  of  notice. 

857.  Of  the  petition  in  an  action  of  right. 

858.  Of  the  answer. 

859.  Of  practice. 

860.  Of  the  verdict. 

861.  Of  judgment. 

862.  Of  limitations,  etc. 

863.  Of  tenants. 

864.  Of  notice  in  actions  to  quiet  title. 

865.  Of  the  petition  to  quiet  title. 

866.  Of  disclaimer  and  costs. 

867.  Of  new  trials. 

868.  Of  appeals. 

869.  Of  constructive  notice. 

Section  851.  When  an  action  of  right  will  lie. — Any 
person  having  a  valid,  subsisting  interest  in  real  property, 
and  a  right  to  the  immediate  possession  thereof,  may  re-- 
cover the  same  by  an  action  against  any  person  acting  as 
owner,  landlord  or  tenant  of  the  property  claimed.1  But 
an  action  by  ordinary  proceedings  will  not  lie  in  favor  of 
one  not  claiming  to  have  the  legal  title,  but  simply  the 
right  of  possession.2 

To  maintain  the  action,  the  party  must  have  a  valid, 
subsisting  interest  in  the  premises,  and  a  right  to  the  im- 
mediate possession,  and  the  defendant  must  be  acting  as 

iCode,    Sec.    4183;     Beatty    v.  2  Kitteringham  v.   Blair   Town 

Gregory,  17-109;  Doolittle  v.  Har-  Lot  and  Land  Co.,  66-280;  Paige  v. 

rington,  Mor.,  226;  Kerr  v.  Leigh-  Cole,  6-153;  Pendergast  v.  B.  &  M. 

ton,  2  G.  Greene,  196.  R.  R.  Co.,  53-326. 

84 


§852.]  BECOVEBY    OF   BEAL   PEOPEBTY.  85" 

owner,  landlord  or  tenant3  One  seeking  to  redeem 
in  equity  from  a  tax  deed  should  bring  his  action 
under  section  1440  of  the  code.4  An  action  to  establish 
and  quiet  title  is  an  action  for  the  recovery  of  real  prop- 
erty and  plaintiff  must  show  title  in  himself.5  The  plain- 
tiff must  recover  on  the  strength  of  his  own  title.6  The 
action  of  right  is  maintainable  for  corporeal,  but  not  in- 
corporeal, hereditaments.  The  general  rule  being  that 
an  action  of  ejectment  will  lie  for  anything  real  of  which 
the  officer  can  deliver  possession.7 

§  852.  When  an  action  to  quiet  title  will  lie. — An 
action  in  the  nature  of  an  action  of  right  will  lie  in  favor 
of  one  having  an  interest  in  real  property  (whether  in  pos- 
session or  not),  against  another  who  claims  title  to  it,  al- 
though not  in  possession  of  the  property,  for  the  purpose 
of  determining  and  quieting  the  title.8  But  it  will  not  lie 
against  judgment  creditors,  and  others  not  claiming  title,* 
nor  can  it  be  maintained  against  one  holding  a  certificate 
of  tax  sale  and  not  claiming  title.10  But  it  will  lie  at  the 
instance  of  executors,  who,  by  the  will,  are  given  posses- 
sion and  control  of  real  property,  for  the  purpose  of  carry- 
ing out  the  provisions  of  the  will,11  and  it  lies  against  a 
non-resident  defendant,  and  the  statutes  relating  to  ser- 
vice of  notice  by  publication  apply  in  such  a  case,12  and  it 
may  be  maintained  in  all  cases  where  the  defendant 
makes  some  claim  adverse  to  the  estate  of  the  plaintiff,, 
even  if  the  defendant  is  in  possession  of  the  land.13  It 
will  lie  by  a  claimant  of  swamp  lands  by  conveyance  from 
the  state  to  quiet  his  interest.14  It  will  lie  by  a  legatee  to 
quiet  title  against  the  widow  of  the  testator  who  claims 
dower  therein,15  and  by  a  railroad  company  to  which  land 

s  See  Nos.  1  and  2.  »  Fejervary  v.  Langer,  9-159. 

*  Callanan  v.  Lewis,  79-452.  10  Eldridge  v.  Kuehl,  27-160,  176, 

s  Schlosser  v.  Crookshank,  65  N.  "  Laverty  v.  Sexton,  41-435. 

W.,  344.  12  Miller  v.  Davison,  31-435. 

oMcCarty    v.    Rochel,    85-427;  is  Lewis    v.     Soule,     52-11;     see- 

Kreuger  v.  Walker,  80-733.  Bartlett  v.  Love,  48-103,  107;  Lees- 

7  Beatty  v.  Gregory,  17-109;   see  v.  Wetmore,  58-170. 

Bush  v.  Sullivan,  3  G.  Greene,  344.  i*  Snell  v.  D.  &  S.  C.  R.  Co.,  78- 

s  Code,  Sec.  4223;    Fejervary  v.  88. 

Langer,  9-159;    Standish  v.     Dow,  is  Peet  v.  Feet,  81-172. 

21-363;  Eldridge  v.  Kuehl,  27-160.  — . 


86  BECOVEKY  OF  SEAL  PROPERTY.      [§§  853-856. 

has  been  granted  after  it  has  complied  with  the  condi- 
tions of  the  grant16 

§  853.  Of  the  parties, — If  the  plaintiff  in  an  action 
of  right  seeks  to  recover  damages  against  the  ancestor 
for  rents  and  profits  his  administrator  and  heirs  must  be 
made  parties.17 

An  agent  of  the  owner  can  not  maintain  an  action  in 
his  own  name.18  The  landlord  in  such  action  may  be  sub- 
stituted, when  it  appears  that  the  defendant  is  only  a  ten- 
ant, but  such  substitution  is  not  required,  as  the  action 
may  proceed  against  the  tenant  alone,  but  in  such  case  the 
landlord  would  not  be  bound  unless  he  had  been  notified 
of  the  action.19 

§  854.  Of  proceedings  in  an  action  for  the  recov- 
ery of  real  property. — Actions  for  the  recovery  of  real 
property  must  be  by  ordinary  proceedings,  and  there  can 
be  no  joinder  and  no  counter  claim  therein  except  like 
proceedings,  and  as  provided  by  statute;20  but  an  equit- 
able defense  may  be  interposed  in  this  action.21 

The  joinder  of  actions  referred  to  in  the  statute  relates 
to  the  cause  of  action,  and  not  to  the  relief  sought,  and  it 
seems  an  action  in  equity  will  lie  if  full  relief  can  not  be 
obtained  by  a  decree  quieting  title.22 

§  855.    Of  proceedings  in  an  action  to  quiet  title. 
—The  action  to  quiet  title,  except  as  otherwise  provided, 
is  to  be  conducted  as  other  actions  by  equitable  proceed- 
ings.23 

§  856.  Of  service  of  notice. — If  the  defendant  is  a 
non-resident  and  has  an  agent  of  record  for  the  property 
in  this  State,  service  of  the  notice  may  be  made  on  such 
agent  in  the  same  manner  and  with  like  effect  as  though 
made  on  the  principal.24 

i«  Cole  v.  D.  M.  V.  R.  Co.,  76-185.  186;    Kramer    v.     Conger,    16-434; 

IT  Cavender  v.  Smith,  8-360.  Warren  v.  Crew,  22-315;  Shawham 

isMcHenry  v.  Painter,  58-365.  v.  Long,     26-488;     Van    Orman  v. 

i»  State  v.  Orwig,  34-112.  Merrill,  27-476. 

20  Code,  Sec.  4182.  22  The  County,  etc.,  v.  The  I.  F. 

21  Rosierz   v.   Van   Dam,    16-175,  &  S.  C.  R.  Co.,  49-657,  662. 
and  see  Thompson  v.  Hurley,  19-  23  Code,  Sec.  4227. 

331;   Van  Orman  v.   Spafford,  16-         24  Code,  Sec.  4186. 


§  857.]          RECOVERY  OF  REAL  PROPERTY.  87 

§  857.  Of  the  petition  in  an  action  of  right. — The 
plaintiff  must  recover  on  the  strength  of  his  own  title.25 
Where  the  action  is  brought  by  a  tenant  in  common  or 
joint  tenant  of  real  property  against  his  co-tenant,  the 
plaintiff  must  show  in  addition  to  his  evidence  of  right, 
that  the  defendant  either  denied  the  plaintiff's  right,  or 
did  some  act  amounting  to  such  denial,26  and  it  would 
seem  that  the  denial  of  plaintiff's  right  should  be  averred 
in  the  petition.  If  one  tenant  is  a  disseisor  of  his  co- 
tenant  he  is  liable  to  an  action  for  rents  and  for  waste.27 

The  petition  should  also  state  that  the  plaintiff  is  en- 
titled to  the  possession  of  the  premises,  particularly  de- 
scribing them,  and  state  the  quantity  of  his  estate,  and 
the  extent  of  his  interest  therein,  and  that  the  defendant 
unlawfully  keeps  him  out  of  possession,28  and  the  dam- 
ages, if  any,  which  he  claims  for  withholding  the  property, 
and  if  other  damages  than  the  rents  and  profits  are  stated, 
it  should  set  out  the  facts  constituting  the  cause  of  such 
claim.29  But  the  objection  that  plaintiff  can  not  recover 
without  proof  that  the  defendant  denied  his  right  before 
suit  brought,  can  not  be  made  for  the  first  time  in  the  su- 
preme court30  The  plaintiff  need  not  attach  to  his  peti- 
tion the  evidence  upon  which  he  relies  to  prove  his  title.31 
The  plaintiff  must  attach  to  his  petition  an  abstract  of  the 
title  relied  on,  showing  from  and  through  whom  such  title 
was  obtained,  together  with  a  statement  of  the  book  and 
page  where  the  same  appears  of  record,  and  if  such  title  or 
any  portion  thereof  is  not  in  writing,  or  does  not  appear, 
that  fact  must  be  stated  in  the  abstract.32  As  to  when  an 
action  is  one  of  right  and  not  of  trespass.33 

The  petition  may  be  in  the  following  form: 

/ 

25  Code,     Sec.    4184;     Hurley    v.  Blair,   38-649;    Larum   v.   Wilmer, 

Street,  29-429;  'Armstrong  v.  Pier-  35-244;    Dunn  v.  Starkweather,  6- 

son,  4  G.  Greene,  45;    McCarty  v.  466. 

Rochel,  85-427;    Heitfz  v.  Cramer,  so  starry  v.  Starry,  21-254,  256. 

84-497;  Kreuger  v.  Walker,  80-733.  si  Boardman    v.     Beckwith,    18- 

2«  Code,  Sec.  4185.  292;  Larum  v.  Wilmer,  35-244,  247. 

27  Dodge  v.  Davis,  85-77.  32  Code,  Sec.  4188. 

as  Barrett  v.  Love,  48-103,  123.  ss  Van  Sickle  v.  Keith,  88-9. 

29  Code,  Sec.  4187,  see  Phillips  v. 


88  RECOVERY   OF    REAL    PROPERTY.  [§  858. 

FORM  OF  PETITION  IN  ACTION  OF  RIGHT. 
Title,     ) 
Venue,   j 

The  plaintiff  states: 

That  he  is  entitled  to  the  immediate  possession  of  the  following 
described  property,  to  wit  (give  a  particular  description  of  the  prem- 
ises) ;  that  he  is  the  absolute  owner  thereof  in  fee  simple  (or  what- 
ever the  quantity  of  his  estate,  and  the  extent  of  his  interest  therein 
may  be;  that  the  defendant  unlawfully  keeps  the  plaintiff  out  of 

possession  of  said  premises  (and  in  case  where  the  action  is 

by  one  tenant  in  common  or  joint  tenant  against  his  co-tenant- insert 
the  following:  "that  prior  to  the  commencement  of  this  action  plaintiff 
demanded  of  said  defendant  possession  of  said  premises,  and  said 
defendant  denied  plaintiff's  right  to  the  same  or  to  any  part  thereof,") 
and  that  the  plaintiff  has  sustained  damages  by  reason  of  the  wrong- 
ful withholding  of  said  property  by  the  defendant,  in  the  loss  of  the 
rents  and  profits  (if  other  damages  are  claimed,  state  the  facts  con- 
stituting the  claim,)  thereof,  in  the  sum  of  dollars. 

Wherefore  the  plaintiff  demands  judgment  for  the  immediate  pos- 
session of  said  real  property,  and  for  dollars,  damages  and 

costs. 

,  attorney  for  plaintiff. 

(Attach  abstract  of  title.) 

(The  petition  may  be  verified,  but  need  not  be  unless  it  is  sought 
to  quiet  title.) 

§  858.  Of  the  answer. — The  defendant  must  attach 
to  his  answer,  if  he  claims  title,  an  abstract  of  the  title 
relied  on,  showing  from  and  through  whom  such  title  was 
obtained,  together  with  a  statement  showing  the  book 
and  page  where  the  same  appears  of  record,  and  if  such 
title,  or  any  portion  thereof,  is  not  in  writing,  or  does  not 
appear  of  record,  such  fact  must  be  stated  in  the  ab- 
stract.34 The  answer  of  the  defendant,  and  of  each,  if 
more  than  one,  must  also  set  forth  what  part  of  the  land 
he  claims,  and  what  interest  he  claims  therein  generally, 
and  if  as  a  mere  tenant,  the  name  and  residence  of  his 
landlord  must  be  given.35  If  defendant  fails  to  state  what 
interest  in  or  title  to  the  premises  he  claims,  such  answer 
is  fatally  defective,  nor  can  he  in  his  answer  set  out  plain- 
tiff's title  and  then  allege  defects  therein^  thereby  raising 
immaterial  issues.36 

a*  Code,  Sec.  4188.  with.  18-292;  Larum  v.  Wilmer,  35- 

85  Code,  Sec.     4189;     Phillips  v.      244,247. 
Blair,  38-649;   Boardman  v.  Beck-          se  Gillis  v.  Black,  6-439. 


§  859.]  RECOVERY  OF  REAL  PROPERTY.  89 

Facts  constituting  an  estoppel  in  pais  need  not  be  spe- 
cially pleaded ;  the  averment  of  the  facts  constituting  de- 
fendant's interest  is  sufficient37 

If  defendant  aver  and  prove  that  he  has  a  crop  sowed, 
planted,  or  growing  on  the  premises,  the  jury  must  find 
the  value  of  the  premises  from  the  date  of  the  trial  till 
January  1st  next  succeeding,  and  no  execution  will  issue 
till  that  time,  if  defendant  executes,  with  sureties  to  be 
approved  by  the  clerk,  a  bond  in  double  such  sum,  to  pay 
said  snrn  at  that  date.  This  bond  has  the  force  and  effect 
of  a  judgment,  and  if  not  paid  when  due,  execution  may 
issue  thereon.38  Defendant  may  plead  and  rely  on  an 
equitable  title  as  a  defense.39  Such  bond  may  be  in  the 
following  form : 

FORM  OF  BOND  FOR  PAYMENT  OF  RENT  IN  ACTION  OF  RIGHT. 

Know  all  men  by  these  presents,  that  we,  -     — ,  principal,  and 
and  ,  sureties,   are   held   and   firmly  bound   unto   


in  the  sum  of  -  dollars,  lawful  money  of  the  United  States,  well 
and  truly  to  be  paid  to  the  said  -  ,  his  heirs,  executors  and 
assigns. 

The  condition  of  this  obligation  is  such,  that  whereas,  on  the 
-  day  of  -  ,  18  —  ,  in  an  action  of  right  then  pending  in  the 
district  court  of  the  State  of  Iowa,  in  and  for  -  county,  wherein 
Was  plaintiff,  and  said  --  was  defendant,  it  was  found 


by  the  verdict  of  a  jury,  and  determined  by  the  judgment  of  the  court 
in  said  action,  that  the  said  plaintiff  recover  the  premises  in  con- 
troversy therein;  that  the  said  defendant  is  in  the  actual  possession 
of,  and  has  crops  sowed  (or  planted  or  growing)  thereon,  and  that 
the  value  of  said  premises  from  the  date  of  said  verdict  until  the  1st 
day  of  January,  18  —  ,  is  the  sum  of  -  dollars.  Now,  if  the  said 
—  shall  and  will  pay  to  the  said  -  on  the  1st  day  of  Janu- 
ary, 18  —  ,  the  said  sum  of  -  dollars,  so  assessed,  then  this  obliga- 
tion to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 
Dated  this  -  ,  18—. 

-  ,     principal. 

•  I    sureties. 
(Add  justification  and  approval.) 

§  859.  Of  practice.  —  The  trial  may  be  to  a  jury,  or  by 
consent  to  the  court,  or  a  referee.  When  it  appears  that  a 
defendant  is  only  a  tenant  the  landlord  may  be  substi- 

87  Phillips  v.  Blair,  38-649.  39  Adams  County  v.  Graves,  75- 

ss  Code,  Sec.  4202.  642. 


90  RECOVERY  OF  EEAL  PEOPERTY.          [§  859. 

tuted  by  serving  an  original  notice  on  him,  or  by  his  volun- 
tary appearance,  and  the  judgment  will  in  such  case  be 
conclusive  against  him;40  but  the  statute  does  not  require 
such  substitution.41  It  is  not  necessary,  when  the  de- 
fendant makes  defense,  to  prove  him  in  possession  of  the 
premises.42 

A  demurrer  to  the  petition  should  be  sustained  when 
the  action  is  by  ordinary  proceedings,  when  plaintiff  does 
not  claim  to  have  the  title;  nor  in  such  a  case  should  the 
cause  be  transferred  to  the  equity  docket,  no  equitable  re- 
lief being  asked.43  And  a  defendant  in  this  action  who 
holds  a  lien  on  the  property  can  not  foreclose  it  by  way 
of  counter  claim.44  This  action  against  a  person  in  pos- 
session can  not  be  prejudiced  by  any  alienation  made  by 
such  person  after  the  action  is  commenced.45 

The  court,  on  motion,  and  after  notice  to  the  opposite 
party,  may,  for  cause  shown,  grant  an  order  allowing  the 
party  applying  therefor  to  enter  upon  the  land  in  contro- 
versy and  survey  the  same  for  the  purpose  of  the  action; 
such  order  must  describe  the  property,  and  a  copy  thereof 
must  be  served  on  the  owner  or  person  having  the  occu- 
pancy and  control  of  the  land.46  Either  party  must  fur- 
nish the  adverse  party  with  a  copy  of  any  unrecorded  con- 
veyance, or  furnish  a  satisfactory  reason  for  not  so  doing 
within  a  reasonable  time  after  demand  therefor.  No 
written  evidence  of  title  can  be  introduced  on  the  trial 
unless  it  has  been  sufficiently  referred  to  in  the  abstract, 
which  may,  on  motion,  be  made  more  specific,  and  may  be 
amended  as  other  pleadings  by  the  party  setting  it  out.47 

When  the  plaintiff  is  entitled  to  damages  for  withhold- 
ing or  using,  or  injuring  his  property,  the  defendant  may 
set  off  the  value  of  any  permanent  improvements  made 
thereon,  to  the  extent  of  the  damages,  unless  he  prefers  to 

40  Code,  Sec.  4190;    State  v.  Or-  **  Kemerer   v.     Bournes,    53-172, 

wig,  34-112.  176. 

*i  State  v.  Orwig,  34-112.  « Code,    Sec.    4192;     Jordan    v. 

42  Code,  Sec.  4191.  Ping,  32-64. 

«  Kitteringham    v.    Blair   Town  *e  Code,  Sees.  4193,  4194. 

Lot  and  Land  Co.,  66-280;  see  Page  v  Code,  Sec.  4188. 
v.  Cole,  6-153;  Pendergast  v.  B.  & 
M.  R.  R.  Co.,  53-326. 


§§  860.  861.]    RECOVERY  OF  REAL  PROPERTY.  91 

avail  himself  of  the  law  for  the  benefit  of  occupying  claim- 
ants.48 

When  an  owner  in  possession  of  real  property  brings  an 
action  against  adverse  claimants  to  quiet  his  title,  he  will 
be  entitled  to  the  relief  sought,  if  sustained  by  the  proofs; 
under  a  general  prayer  for  relief,  if  the  petition  embodies 
the  essential  averments  of  the  statute,  though  it  is  mani- 
fest that  it  was  not  framed  with  special  reference 
thereto.49 

An  instrument  which  is  the  basis  of  title  may  be  intro- 
duced in  evidence  by  a  party,  before  showing  its  connec- 
tion with  the  rest  of  his  claim  of  title.  In  order  to  recover, 
title  must  be  traced  back  to  a  common  source,  to  the  gov- 
ernment, or  to  one  under  whom  both  parties  claim. 

In  case  title  to  real  estate  is  in  question,  the  fact  that  a 
party's  only  title  is  by  an  executory  contract  may  be 
shown  by  parol,  as  a  measure  of  directing  the  further  in- 
vestigation of  title.50  The  right  of  recovery  is  to  be  lim- 
ited to  and  determined  by  the  pleadings.51 

§  860.  Of  the  verdict, — The  verdict  may  specify  the 
extent  and  quantity  of  the  plaintiff's  estate,  and  the  prem- 
ises to  which  he  is  entitled,  with  reasonable  certainty,  by 
metes  and  bounds,  and  other  sufficient  descriptions,  ac- 
cording to  the  facts  proved,52  and  a  general  verdict  in 
favor  of  the  plaintiff  without  such  specifications,  entitles 
the  plaintiff  to  the  quantity  of  interest  or  estate  in  the 
premises  as  set  forth  and  described  in  the  petition.53  In 
case  of  wanton  aggression  on  the  part  of  the  defendant, 
the  jury  may  award  exemplary  damages.54 

§  861.  Of  judgment. — If  the  interest  of  the  plaintiff 
expire  before  the  time  in  which  he  could  be  put  in  posses- 
sion, he  can  obtain  a  judgment  for  damages  only;55  but 
the  above  provision  does  not  apply  to  a  case  when,  during 
action  pending,  the  plaintiff  conveys  the  land;  in  such 

« Code,     Sees.  4199,  2964;     Par-  52  Code,  Sec.  4195. 

sons  v.  Moses,  16-440.  53  Code,  Sec.  4196. 

«  Paton  v.  Lancaster,  38-494.  54  Code,  Sec.  4200. 

BO  Davis  v.  Strohm,  17-421.  65  Code,  Sec.  4197. 
6i  Pfotzer  v.  Mullany,  30-197. 


92  RECOVERY  OF  REAL  PROPERTY.          [§  862. 

case  it  may  continue  to  be  prosecuted  in  bis  name.  But  it 
does  apply  when  the  plairftiff  holds  a  limited  and  de- 
terminable  estate  which  expires  pending  the  proceed- 
ings.56 

When  it  appears  that  the  plaintiff  is  entitled  to  the  im- 
mediate possession  of  the  premises  it  seems  judgment  will 
be  entered  and  an  execution  issued  accordingly,57  and 
plaintiff  may  have  judgment  for  the  rent  or  rental  value, 
of  the  premises  which  accrues  after  judgment,  and  before 
delivery  of  possession,  by  motion,  in  the  court  in  which 
the  judgment  was  rendered,  ten  days'  notice  thereof  in 
writing  being  given,  unless  judgment  has  been  stayed  by 
appeal,  and  bond  given,  in  which  case  the  motion  may  be 
made  after  the  affirmance  of  the  judgment58 

§  862.  Of  limitations,  etc, — No  recovery  can  be  had 
by  the  plaintiff  for  the  use  and  occupation  of  the  premises 
for  more  than  five  years  prior  to  the  commencement  of 
the  action.59  A  doweress  can  only  recover  damages  for 
detainer  of  her  dower  from  the  proper  party  (as  measured 
by  use  and  profits  at  least)  from  the  time  of  demand,  pro- 
vided the  time  of  such  demand  was  not  more  than  six 
years  prior  to  the  commencement  of  the  suit,  and  she  can 
only  recover  for  the  six  years  preceding  the  commence- 
ment of  the  suit  in  any  event.60  The  limitation  in  this 
section  has  no  aplication  to  the  right  of  an  occup3Ting 
claimant  to  recover  for  improvements.61  The  plaintiff, 
where  he  holds  the  legal  title  and  right  of  possession,  may 
recover  for  the  use  and  occupation  of  the  land,  as  well  as 
title  and  possession.62  In  an  action  against  the  ancestor 
where  the  heirs  are  made  parties  after  his  death,  they  are 
not  liable  for  damages  for  rents  and  profits,  while  the  an- 
cestor held  possession,  but  only  during  the  time  they 
are  in  possession.63 

An  action  to  recover  for  use  and  occupation  of  real 
property,  must  be  brought  within  five  years  from  the 

Be  Jordan  v.  Ping,  32-64.  so  O'Farrell  v.  Simplot.  4-381. 

"Code,  Sec.  4203;    see  Dunn  v.  «i  Parsons  v.  Moses,  16-440. 

Starkweather,  6-470.  62  Dunn  v.   Starkweather,   6-470. 

6s  Code,  Sec.  4204.  es  Cavender  v.  Smith,  8-360. 
69  Code,  Sec.  4198. 


§§  8G3-S65.]     EECOVERY  OF  EEAL  PROPERTY.  93 

time  when  the  cause  of  action  accrued.64  If  possession  is 
relied  on  to  bar  an  action  of  right,  it  must  be  uninter- 
rupted, and  the  length  of  time  and  possession  relied  on 
must  be  set  forth  in  the  answer.65 

§  863.  Of  tenants. — A  tenant  in  possession,  in  good 
faith,  under  a  lease  or  license  from  another,  is  not  liable 
beyond  the  rent  in  arrears  at  the  time  of  suit  brought, 
and  that  which  may  afterward  accrue,  during  the  con- 
tinuance of  his  possession.66 

§  864.  Of  notice  in  actions  to  quiet  title. — The 
notice  in  this  action  must  accurately  describe  the  prop- 
erty, and  in  general  terms  the  nature  and  extent  of  plain- 
tiff's claims,  and  is  to  be  served  as  in  other  cases.67  Such 
notice  may  be  served  by  publication  and  will  cut  off  the 
rights  of  a  non-resident.68  It  may  be  in  the  following 
form: 

FORM  OF  NOTICE  IN  ACTIONS  TO  QUIET  TITLE. 

Title,  ) 
Venue,  j 

To : 

Sir: — You  are  hereby  notified  that  there  is  now  (or  state  when 
there  will  be)  on  file  in  the  clerk's  office  of  the  district  court  in  and 
for  said  county,  the  petition  of  the  plaintiff  -  — ,  in  which  he 
states  that  he  is  the  owner  in  fee  simple  of  (here  accurately  describe 
the  premises)  and  praying  that  the  title  thereto  be  quieted  in  him 
and  that  you  be  barred  and  forever  estopped  from  having,  or  claim- 
ing, any  right  or  title  thereto  adverse  to  the  plaintiff.  Now,  unless 
you  appear  thereto  and  defend  before  noon  of  the  second  day  of  the 
(name  of  term)  term,  18 — ,  of  said  court,  which  will  commence  on 
the  -  -  day  of  -  — ,  18 — ,  at  the  court  house  in  -  — ,  Iowa, 
default  will  be  entered  against  you,  and  a  decree  rendered  thereon  as 

prayed. 

,  attorney  for  plaintiff. 

§  865.  Of  the  petition  to  quiet  title. — The  petition 
in  an  action  to  quiet  title  must  be  under  oath,  and  must 
set  forth  the  nature  and  extent  of  the  plaintiff's  estate, 
and  describe  the  premises  as  accurately  as  possible  and 

e*  Tibbetts  v.  Morris,  42-120;  see  v.  Gardner,  25-102;  Stanborough  v. 

Muir  v.  Bozarth,  44-499.  Cook,  83-705. 

cs  Wright  v.  Keithler,  7-92;   Gil-  <"  Code,  Sec.  4224. 

lis  v.  Black,  6-439.  es  Knudson  v.  Litchfield,  87-111. 

eo  Code,  Sec.  4201;   see  Gardner 


94  RECOVERY  OF  EEAL  PROPERTY.          [§  866. 

aver  that  he  is  credibly  informed  and  believes  that  the  de- 
fendant makes  some  claim  adverse  to  the  plaintiff,  and 
pray  for  the  establishment  of  plaintiff's  estate  against 
such  adverse  claims,  and  that  the  defendant  be  forever 
estopped  from  having  or  claiming  any  right  or  title  to  the 
premises  adverse  to  plaintiff.69  It  may  be  in  the  following 
form: 

FORM  OF  PETITION  TO  QUIET  TITLE. 
Title, 
Venue. 

The  plaintiff  states: 

Par.  1.  That  he  is  the  absolute  owner  in  fee  simple  of  the  fol- 
lowing described  real  estate,  to  wit:  (Here  describe  the  premises  as 
accurately  as  possible.) 

Par.  2.  That  he  is  credibly  informed  and  believes  that  the  de- 
fendant makes  some  claim  adverse  to  the  estate  of  the  plaintiff  in 
said  property. 

Par.  3.  Wherefore,  the  plaintiff  prays  that  his  title  and  estate 
be  established  against  the  adverse  claims  of  the  defendant,  and  that 
said  defendant  and  all  persons  claiming  by  or  through  him  be  barred 
and  forever  estopped  from  having  or  claiming  any  right  or  title  ad- 
verse to  the  plaintiff  in  and  to  said  premises,  and  that  the  title  thereto 
be  quieted  in  the  plaintiff  and  that  the  defendant  be  adjudged  to  pay 
the  costs  of  this  proceeding. 

,  attorney  for  plaintiff. 

(Add  verification.) 

The  plaintiff  may  unite  in  his  petition  a  prayer  to  re- 
cover possession,  and  one  that  the  cloud  on  his  title  be  re- 
moved.70 

§  866.  Of  disclaimer  and  costs. — The  defendant 
may  appear  and  disclaim  all  right  and  title  adverse  to  the 
plaintiff,  in  which  case  he  will  recover  his  costs.  In  other 
cases  costs  will  be  taxed  in  the  discretion  of  the  court. 
If  a  party  twenty  days  or  more  before  bringing  suit  to 
quiet  title  to  real  estate,  requests  of  the  person  holding  an 
apparent  adverse  interest  or  right  therein  the  execution 
of  a  quit  claim  deed  thereto,  and  shall  also  tender  to  him 
one  dollar  and  twenty-five  cents  to  cover  the  expense  of 
the  execution  and  delivery  of  the  deed,  and  he  shall  re- 
fuse and  neglect  to  comply  therewith,  the  filing  of  a  dis- 
cs Code,  Sec.  4224;  Paton  v.  Lan-  70  Lees  v.  Wetmore,  58-170. 
caster,  38-494. 


§  867.  J          RECOVERY  OF  REAL  PROPERTY.  95 

claimer  of  interest  or  right  will  not  avoid  costs  in  an 
action  thereafter  brought,  and  the  court  may  in  its  dis- 
cretion, if  the  plaintiff  succeeds,  tax  in  addition  to  the 
ordinary  costs  of  court,  an  attorney's  fee  for  plaintiff's 
attorney  not  exceeding  twenty-five  dollars  if  there  is  but 
a  single  tract  not  exceeding  forty  acres  in  extent  or  a  sin- 
gle lot  in  a  city  or  town  involved,  and  forty  dollars  if  but 
a  single  tract  exceeding  forty  acres  and  not  more  than 
eighty  acres;  in  cases  in  which  two  or  more  tracts  are 
included  that  may  not  be  embraced  in  one  description,  or 
single  tracts  covering  more  than  eighty  acres,  or  two  or 
more  city  or  town  lots,  a  reasonable  fee  may  be  taxed,  not 
exceeding,  proportionately,  those  above  s  a  led.71 

§  867.  Of  new  trials. — In  any  of  the  causes  men- 
tioned in  this  chapter  3  of  Title  21  of  the  Code,  the  court, 
in  its  discretion,  may  grant  a  new  trial  on  the  application 
of  any  party  thereto,  or  those  claiming  under  a  party, 
made  at  any  time  within  one  year  after  the  former  trial, 
although  the  grounds  for  a  new  trial  in  other  cases  are 
not  shown;  but  only  one  such  new  trial  shall  be  granted.72 

If  the  application  for  a  new  trial  be  made  after  the  close 
of  the  term  at  which  the  judgment  was  rendered,  the 
party  obtaining  a  new  trial  must  give  the  opposite  party 
ten  days'  notice  thereof  before  the  term  at  which  the  ac- 
tion stands  for  trial.73  The  result  of  a  new  trial  granted 
at  a  term  subsequent  to  the  one  at  which  the  first  trial 
was  had  will  not  affect  the  rights  of  third  parties,  ac- 
quired in  good  faith,  for  a  valuable  consideration,  since 
the  former  trial.74 

But  a  party  who,  on  such  new  trial,  shows  himself  en- 
titled to  lands  which  have  so  passed  to  the  purchaser  in 
good  faith,  may  recover  the  amount  of  damages  against 
the  other  party  in  the  same  or  a  subsequent  action.75  The 
party  who  is  successful  in  such  new  trial  shall,  if  the  case 

71  Code,  Sec.  4225,  4226;   Deacon  Butterfield  v.  Walsh,  25-263;    The 
v.  Central  la.  Inv.  Co.,  63  N.  W.,  County,  etc.,  v.  The  I.  F.  &  S.  C.  R. 
673.  Co.,  49-657. 

72  Code,  Sec.  4205;  Newell  v.  San-  73  Code,  Sec.  4206. 
ford,   10-396;    White   v.    Poorman,  74  Code,  Sec.  4207. 
24-108;  Floyd  v.  Hamilton,  10-552;  75  Code,  Sec.  4207. 


96  RECOVERY  OF  REAL  PROPERTY.          [§  80S. 

require  it,  have  his  writ  of  execution  to  restore  him  his 
property.76 

The  statute  does  not  seem  to  contemplate  any  notice  to, 
or  defense  by,  the  opposite  party  as  to  the  application  for 
a  new  trial.77  Greater  latitude  is  given  the  courts  with 
reference  to  new  trials  in  this  action  than  in  any  other.78 

A  mistake  by  a  third  party  in  selecting  a  paper  to  be 
used  as  documentary  evidence  when  not  discovered  in 
time  to  correct  it  before  the  conclusion  of  the  trial,  is 
good  cause  for  a  new  trial  in  an  action  of  right79 

The  unsuccessful  party  in  an  action  of  right  is  entitled 
to  the  benefit  of  the  provision  of  the  statute  relating  to 
new  trials  in  such  cases,  when  the  defense  is  equitable  in 
its  nature,  as  well  as  when  it  is  legal,80  nor  will  the  fact 
that  the  petition,  in  addition  to  asking  that  plaintiff's  ti- 
tle be  quieted,  prays  for  other  equitable  relief  regarding 
the  land,  take  the  case  out  of  the  provisions  of  the  law  re- 
lating to  granting  new  trials,  in  relation  to  quieting  title; 
and  a  new  trial  in  such  a  case  will  be  granted  for  failure 
to  make  defense  through  mistake  which  is  due  to  mis- 
information and  not  to  neglect.81  But  it  will  not  be 
granted  to  relieve  a  party  from  results  of  his  own  negli- 
gence.82 The  law  does  not  contemplate  a  trial  upon  an 
application  for  a  new  trial.83 

§  868.  Of  appeals. — An  appeal  may  be  taken  from 
an  order  of  the  court  granting  a  new  trial,  but  such  order 
will  not  be  interfered  wTith  unless  it  is  shown  that  the  dis- 
cretion vested  in  the  court  has  been  abused,  or  that  great 
injustice  has  been  done  the  appellant  A  stronger  case 
must  be  made  than  would  be  required  to  justify  the  re- 
versal of  an  order  refusing  a  new  trial.84  And  an  appeal 
lies  from  the  final  judgment  in  an  action  of  right,  that  is, 

76  Code,  Sec.  4207.  si  The  County,  etc.,  v.  The  I.  F. 

77  The  County,  etc.,  v.  The  I.  F.      &  S.  C.  R.  Co.,  49-657. 

&  S.  C.  R.  Co.,  55-157.  82  Russell  v.  Nelson,  32-215. 

78  White    v.     Poorman,    24-108;          ss  The  County,  etc.,  v.  The  I.  F. 
Newell  v.  Sanford,  10-396.  &  S.  C.  R.  Co.,  49-657. 

79  Floyd  v.  Hamilton,  10-552.  s*  Newell  v.  Sanford,  10-396. 
so  Butterfield  v.  Walsh,  25-263. 


§  869.]          EECOVEEY  OF  EEAL  PROPERTY.  97 

from  the  judgment  and  decree  adjudicating  the  rights  of 
the  parties  as  to  title.85 

§  869.  Of  constructive  notice, — When  any  part  of 
the  real  property  which  is  the  subject  of  the  action  is  sit- 
uated in  any  other  county  than  the  one  in  which  the 
action  is  brought,  the  plaintiff  must,  in  order  to  affect 
third  persons  with  constructive  notice  of  the  pendency  of 
the  action,  file  with  the  clerk  of  the  district  court  of  such 
county  a  notice  of  the  pendency  of  the  action,  containing 
the  names  of  the  parties,  the  object  of  the  action,  and  a 
description  of  the  property  in  the  county  affected  thereby, 
who  must  at  once  index  and  enter  a  memorandum  thereof 
in  the  incumbrance  book,  and  from  the  time  of  such  index- 
ing only  will  the  pendency  of  the  action  be  constructive 
notice  to  subsequent  purchasers  or  incumbrancers  there- 
of, who  will  be  bound  by  all  the  proceedings  taken  after 
the  filing  of  such  notice  to  the  same  extent  as  if  parties  to 
the  action;  and  within  two  months  after  the  determina- 
tion of  such  action,  there  shall  be  filed  with  such  clerk  a 
certified  copy  of  the  final  order,  judgment  or  decree,  and 
he  must  enter  and  index  the  same  as  if  it  had  been  ren- 
dered in  his  county,  or  the  notice  will  cease  to  be  con- 
structive notice.86 

ss  McMurray  v.  Day,  70-671;  see         ««  Code,  See.  3544. 
Williams  v.  Wells,  62-747. 


Vol.  II— 7 


CHAPTER  LII. 

OF  ACTIONS  ON  OFFICIAL  SECURITIES  AND  FOR  FINES  AND 

FORFEITURES. 

Sec.  870.  Of  bonds  of  public  officers. 

871.  When  the  action  lies 

872.  May  be  several  actions  on  the  same  security. 

873.  Extent  of  liability  of  sureties. 

874.  Of  the  petition. 

875.  Fines  and  forfeitures. 

876.  Of  the  petition  in  cases  of  forfeiture. 

877.  To  what  county  fines  belong. 

878.  Effect  of  paying  part  of  a  fine. 

879.  Of  recovery  of  fine  paid. 

Section  870.  Of  bonds  of  public  officers. — Our  stat 
ute  provides  that  the  official  bond  of  an  officer  is  to  be 
construed  as  security  to  the  body  politic  or  civil  cor- 
poration of  which  he  is  an  officer,  and  also  to  all  the  mem- 
bers thereof,  severally,  who  are  intended  to  be  thereby 
secured.1 

§  871.  When  the  action  lies. — The  action  will  lie  in 
favor  of  a  land  owner  against  a  sheriff  for  money  re- 
ceived by  him  from  a  railroad  company  on  the  condem- 
nation of  the  right  of  way,  upon  the  expiration  of  the 
thirty  days  allowed  for  an  appeal  from  such  proceed- 
ings; but  it  is  barred  unless  brought  within  three  years 
after  it  accrues,  and  the  bar  of  the  statute  operates  in 
favor  of  both  the  sheriff  and  the  sureties  on  his  bond.2 

1  Code,  Sec.  4336.  Lins,   57-235;    Wells  v.   Stomback, 

2  Code,  Sees.  3447,  4336;  Lower  v.  59-376,  378;   Bank  of  Reinbeck  v. 
Miller,  66-408;  see  Prescott  v.  Gou-  Brown,   76-696;     Walters-Gates    v. 
ser,  34-175;  State  v.  Henderson,  40-  Wilkinson,   92-129;    State  v.   Far- 
242*;    Keokuk  County    v.    Howard,  rell,  83-661;    Eyerly  v.   Board,  77- 
41-11;   Wadsworth  v.  Gerhard,  55-  470;  Hintrager  v.  Richter,  76-406; 
367;  Steel  v.  Bryant,  49-116;  Moore  Sac  County  v.  Hobbs,  72-69. 

v.    McKinley,    60-367;     Dewey    v. 

98 


§§  872-874.]     ACTIONS  ON  OFFICIAL  SECURITIES,  ETC.  99 

It  will  lie  against  a  sheriff  and  his  sureties  far  tres- 
passes committed  by  him  in  attempting  to  perform  his 
official  duties,3  and  against  a  constable  and  sureties  on 
his  bond,  where  the  constable  acting  in  his  official  ca- 
pacity levies  on  and  sells  property  exempt  from  execu- 
tion.4 And  against  the  sheriff  when  his  deputy  collects 
money  on  an  execution  and  fails  to  pay  it  over  to  the  par- 
ties entitled  thereto.5 

§  872.  May  be  several  actions  on  the  same  secur- 
ity.— A  judgment  in  favor  of  a  party  for  one  delinquency 
does  not  preclude  the  same,  or  another  party,  from  an 
action  on  the  same  security  for  another  delinquency,  ex- 
cept that  sureties  can  be  made  liable  in  the  aggregate 
only  to  the  extent  of  their  undertaking.6 

§  873.  Extent  of  liability  of  sureties. — Sureties  on 
official  bonds  are  liable  only  for  acts  done  by  the  prin- 
cipal during  the  term  for  which  the  bond  was  given,  nor 
are  they  responsible  for  the  acts  of  the  officer  after  his 
term  has  expired,  although  his  successor  may  not  have 
qualified.7 

§  874.  Of  the  petition. — The  petition  may  be  in  the 
following  form: 

FORM  OF  PETITION  AGAINST  SHERIFF  FOR  NEGLECTING  TO 
PAY  OVER  MONEYS  COLLECTED  ON  EXECUTION. 


Title, 
Venue 


:\ 


The  plaintiff  states: 

That  at  the  times  hereinafter  mentioned  the  defendant  was  the 

sheriff  of  the  county  of ,  and  State  of  Iowa.  That  on  the 

day  of ,  18 — ,  at ,  an  execution  was  duly  issued  in  form  and 

effect  as  required  by  law  against  the  property  of  one  and  in 

favor  of  the  plaintiff  upon  a  judgment  for  the  sum  dollars 

principal,  and  dollars  costs,  which  had  been  duly  recovered  in 

favor  of  the  plaintiff  against  said in  district  court  of  the  county 

of  ,  in  this  State,  and  said  execution  was,  by  the  plaintiff,  di- 
rected and  delivered  to  the  defendant  as  such  sheriff.  That  the  de- 
fendant thereafter  as  such  sheriff  collected  and  received  upon  said  exe- 

s  Charles  v.  Haskins,  11-329.  « Code,    Sec.    4337;     Charles    v. 

*  Strunk  v.  Ocheltree,  11-158.  Haskins,  11-329. 

B  Brayton  v.  Town,  12-346.  i  Wapello  County  v.  Bigham,  10- 

39. 


100  ACTIONS    ON   OFFICIAL    SECURITIES,    ETC.     [§§  875,   876. 

cution  for  the  use  and  benefit  of  plaintiff  the  sum  of  dollars, 

besides  the  costs  and  his  lawful  fees  thereon.  That  more  than  seventy 
days  had  elapsed  since  the  issuance  and  delivery  of  said  execution  to 
the  defendant,  before  this  action  was  commenced. 

That  said  defendant,  in  violation  of  his  duty  as  said  sheriff,  has 
failed  and  neglected  to  pay  over  to  the  plaintiff  the  amount  so  col- 
lected or  any  part  thereof,  though  often  requested  so  to  do,  to  the 

damage  of  this  plaintiff,  in  sum  of  dollars,  no  part  of  which 

has  been  paid. 

Wherefore  plaintiff  demands  judgment  against  said  defendant  for 

dollars,  with  interest  thereon  from  the  day  of , 

18 — ,  and  costs  of  this  action. 

,  attorney  for  plaintiff. 

(Add  verification  if  desired.) 

§  875.  Fines  and  forfeitures. — Fines  and  forfeit- 
ures not  otherwise  disposed  of  go  into  the  treasury  of  the 
county  where  the  same  are  collected  for  the  benefit  of 
the  school  fund,8  and  actions  for  their  recovery  may  be 
prosecuted  by  the  officers  or  persons  to  whom  they  by 
law  belong  in  whole  or  in  part,  or  by  the  public  officers 
into  whose  bauds  they  are  to  be  paid  when  collected.9 
A  judgment  for  a  penalty  or  forfeiture  rendered  by  col- 
lusion, does  not  prevent  another  action  for  the  same  sub- 
ject-matter.10 

§  876.    Of  the  petition  in  cases  of  forfeiture. — The 

petition  in  an  action  to  recover  on  a  forfeited  bond  may 
be  in  the  following  form: 

FORM  OF  PETITION  IN  ACTION  ON  A  FORFEITED  BOND. 

Title, 
Venue. 

Your  petitioner  claims  of  the  defendants,  and  ,  the 

sum  of  hundred  dollars  and  for  cause  of  such  claim  states: 

That  heretofore,  to  wit:  on  the  day  of  ,  18 — ,  the  grand 

jury  of  the  county  of  ,  in  the  State  of  Iowa,  duly  returned  into 

court  an  indictment  against  one  ,  charging  him  with  the  crime 

of  (here  insert  the  crime  charged)  which  said  indictment  was  duly  and 
properly  filed  by  the  clerk  of  the  district  court  of  said  county  and 
State. 

That  the  judge  of  said  court  made  an  order  on  said  indictment 
admitting  the  said to  bail  in  the  sum  of hundred  dollars. 

s  Code,    Sec.   4338;    Const.,   Art.          »  Code,  Sec.  4339. 
9,  Sec.  4.  10  Code,  Sec.  4340. 


§§  877,  878.]  ACTIONS  ON  OFFICIAL  SECURITIES,  ETC.  101 

That  afterward,  to  wit,  on  the  day  of  -  — ,  18 — ,  the  de- 
fendants,    and  ,  made  their  certain  bond,  a  copy  of  which 

bond  is  hereto  attached  and   marked   exhibit  "A"  and   made  a  part 

hereof,   conditioned   that  the  said should  appear   and   answer 

said  indictment  and  abide  the  orders  and  judgments  of  the  court,  and 
not  depart  without  leave  of  same,  and  if  they  failed  to  perform  either 
of  these  conditions,  they  would  pay  to  the  State  of  Iowa,  the  sum  of 

hundred  dollars.    That  the  said  bond  was  on  the  day  of 

— ,  A.  D.  18 — ,  accepted  and  approved,  and  duly  and  properly  filed 

in  the  office  of  the  clerk  of  said  district  court.    That  at  the  

term  of  said  court  for  the  year  18 — ,  the  said  was  duly  ar- 
raigned on  said  indictment,  and  that  on  ,  18 — ,  the  said  

plead  guilty  of  the  charge  contained  in  said  indictment,  to  wit  (here 

insert  crime  charged) ;  and  that  on  the day  of ,  18 — ,  the 

said  was,  by  the  judgment  of  the  court  then  and  there  pro- 
nounced, sentenced  to  pay  a  fine  of dollars  and  costs  taxed  at 

dollars. 


That  at  the term,  18 — ,  of  said  district  court,  the  said 


was  called  to  surrender  himself  in  execution  of  the  judgment  but 
failed  to  appear,  when  the  court  made  a  further  order  declaring  the 
bond  given  by  said  defendants  herein  forfeited. 

That  the  said  having  failed  to  abide  the  judgment  of  the 

court  by  surrendering  himself  in  execution  thereof,  as  these  defendants 

agreed  he  should  do,  the  whole  amount  of  said  bond,  to  wit:   

dollars,  became  by  the  terms  thereof  due  the  plaintiff,  and  no  part 
thereof  has  been  paid. 

Wherefore  plaintiff  demands  judgment  against  the  defendants  in 

the  sum  of dollars  and  costs. 

,  county  attorney, 

of  county,   Iowa. 

(Add  verification.) 

§  877.  To  what  county  fines  belong, — When  a 
criminal  case  is  taken  on  a  change  of  venue  to  another 
county  and  fines  which  have  been  imposed  are  paid  in 
to  the  clerk  of  the  county  where  the  case  is  finally  dis- 
posed of,  they  are  "collected"  within  the  meaning  of  the 
law  in  that  county  and  should  be  paid  into  its  treasury.11 

§  878.  Effect  of  paying  part  of  a  fine. — If  one  is 
convicted  of  a  crime,  and  fined,  and  in  default  of  pay- 
ment of  the  same  is  committed  to  prison  for  a  time  fixed, 
he  can  not,  after  being  imprisoned  for  a  part  of  the  time, 
pay  a  part  of  the  fine,  and  have  his  term  of  imprisonment 
reduced  pro  tanto.12 

11  Pottawatamie  County  v.  Car-      ren  County  v.  Polk  County,  89-44. 
roll  County,  67-456.    See  also  War-         12  Galles  v.  Wilcox,  68-664. 


102  ACTIONS   ON    OFFICIAL   SECTJEITIES,   ETC.  [§  879. 

§  879.  Of  recovery  of  fine  paid. — One  who  is  ar- 
rested for  the  violation  of  a  void  ordinance,  and  pleads 
not  guilty,  but  makes  no  objection  to  the  ordinance,  is 
found  guilty  and  fined,  and  pays  the  same  while  under 
arrest,  without  protest,  believing  that  the  judgment 
against  him  is  valid,  does  not  pay  under  duress  and  can 
not  recover  back  the  money  so  paid.13 

is  Bailey  v.  Paulina,  69-463;  see   Kraft  v.  City  of  Keokuk,  14-86; 
Espy  v.  Ft  Madison,  14-226. 


CHAPTER  LIII. 

OF   ACTIONS    AGAINST   RAILWAY   COMPANIES    FOR   DAMAGES 
CAUSED  BY  FIRE  AND  FOR  INJURIES  TO  STOCK. 

Sec.  880.  Of  former  statutes. 

881.  Of  the  liability  under  the  present  statute. 

882.  Of  liability  of  company  operating  a  road. 

883.  Of  contributory  negligence. 

884.  Of  the  evidence. 

885.  Of  damages. 

886.  Of  the  petition. 

887.  Of  liability  of  railway  companies  for  killing  stock,  etc. 

888.  Same — Of  stock  running  "at  large." 

889.  Same — Of  fencing  at  depot  grounds  and  highways. 

890.  Same — Of  failing  to  repair  fences. 

891.  Same — Of  double  damages. 

892.  Of  the  affidavit  and  notice. 

893.  Of  practice,  evidence,  etc. 

894.  Of  speed  of  trains. 

Section  880.  Of  former  statutes. — Prior  to  the  en- 
actment of  the  present  law  it  was  held  that  in  actions 
to  recover  damages  caused  by  fire  set  out  by  the  engine  of 
a  railway  company  that  it  was  incumbent  on  the  plaintiff 
to  show  negligence  of  the  defendant,  and  proof  of  the 
injury  complained  of  was  not  sufficient  to  make  out  a 
prima  facie  case.1 

§  881.  Of  the  liability  under  the  present  statute. 
— The  statute  provides  that  any  corporation  operating  a 
railway  shall  be  liable  for  all  damages  by  fire  that  is  set 
out  or  caused  by  operating  of  said  railway,  and  such 
damages  may  be  recovered  in  the  same  manner  as  is  pro- 

i  Gandy  v.  C.  &  N.  W.  R.  Co.,  C.  &  N.  W.  R.  Co.,  31-176;  Kesee  v. 

30-420;  McCummons  v.  C.  &  N.  W.  C.  &  N.  W.  R.  Co.,  30-78;  McCor- 

R.  Co.,  33-187;  Garrett  v.  C.  &  N.  mick  v.  C.,  R.  I.  &  P.  R.  Co.,  41- 

W.  R.  Co.,  36-121;   see  Jackson  v.  193. 

103 


104  ACTIONS    AGAINST   EAILWAY   COMPANIES.  [§  882. 

vided  by  law  in  regard  to  injuries  to  stock,  except  as  to 
double  damages.  Under  this  statute  it  is  held  that  no 
absolute  liability  is  created  against  the  defendant,  but 
the  statute  makes  the  fact  of  the  injury  prima  facie  evi- 
dence of  the  negligence  of  the  defendant,  which  pre- 
sumption of  negligence  may  be  rebutted  by  evidence 
showing  its  freedom  from  such  negligence.2  And  this 
same  doctrine  is  recognized  and  approved  in  the  latter 
cases.3  Under  this  statute  it  was  held  that  where  the 
plaintiff  in  a  reasonable  attempt  to  save  the  property  of 
another  from  destruction  by  fire  set  out  by  defendant's 
negligence  received  a  personal  injury  that  he  might  re- 
cover.4 The  question  to  be  determined  under  the  statute 
is,  did  defendant's  engine  set  out  the  fire,  if  so,  was  the 
engine  properly  constructed  and  operated,  and  in  good 
condition?  and  the  duty  of  a  railroad  ^company  to  use 
the  best  devices  available  to  prevent  the  escape  of  fire 
does  not  depend  upon  and  is  not  fixed  by  the  usage  of 
other  roads.5  This  statute  does  not  invalidate  a  con- 
tract between  a  company  and  one  given  a  license  by  it 
to  erect  a  building  on  the  right  of  way  and  which  by  its 
terms  relieves  the  company  from  liability  for  an  injury 
caused  by  its  negligence.6 

§  882.  Of  liability  of  company  operating  a  road. 
—The  liability  imposed  by  statute  is  not  confined  to  the 
company  which  owns  the  railroad  by  the  operation  of 
which  the  damage  was  caused;  but  a  company  which  is 
operating  a  line  of  railway  owned  and  also  used  by  an- 
other company  which  permits  combustible  matter  to  ac- 
cumulate on  its  right  of  way,  by  reason  of  which  fire 
from  the  engine  of  the  company  so  operating  the  road 

2  Small  v.  C.,  R.  I.  &  P.  R.  Co.,  Co.,  77-661;  Rose  v.  C.  &  N.  W.  R. 

50-338;  Slossen  v.  B.,  C.  R.  &  N.  R.  Co.,  72-625;  West  v.  C.  &  N.  W.  R. 

Co     51-295;  Libby  v.  C.,  R.  I.  &  P.  Co.,  77-654;   Babcock    v.    Railway, 

R  Co.   52-92;  Code,  Sec.  2056;  Bab-  62-593. 

cock  v   C.  &  N.  W.  R.  Co.,  62-593;  *  Liming  v.  111.  Cent.  R.  Co.,  81- 

Seska  v.  C.,  M.  &  St.  P.  R.  Co.,  77-  246. 

137  5  Metzgar  v.  C.,  M.  &  St.  P.  R. 

s  Leland  v.  C.,  M.  &  St.  P.  R.  Co.  Co.,   76-387. 

(not  reported),  23  N.  W.  Rep.  page  e  Griswold  v.  111.  Cent.  R.  Co.,  90- 

390;    Engle  v.  C.,  M.  &  St.   P.  R.  265. 


§§  883-4.]        ACTIONS    AGAINST   EAILWAY   COMPANIES.  105 

originates  on  such  right  of  way,  is  liable  for  the  damages 
which  result.7 

§  883.  Of  contributory  negligence. — Prior  to  the 
enactment  of  the  present  provision  of  the  code,  it  was 
held  that  the  plaintiff,  by  his  negligence  or  want  of  care, 
might  contribute  to  produce  the  injury  complained  of, 
and  if  he  did  so,  he  could  not  recover;  but  what  acts  of 
commission  or  omission  on  his  part  would  amount  to 
negligence  was  a  question  for  the  jury  to  determine.8 
Later,  it  was  suggested  that  it  might  not  be  incumbent 
on  the  plaintiff  to  prove  his  freedom  from  negligence.9 
But  it  is  now  held  that  the  negligence  of  plaintiff,  which 
may  have  contributed  to  the  result  complained  of,  will 
not  defeat  his  recovery.10 

§  884.  Of  the  evidence.— The  fact  of  the  fire  being 
prima  facie  evidence  of  negligence,  the  plaintiff,  it  seems, 
need  only  prove  the  fact  that  it  was  set  out  by  defend- 
ant's engine  used  in  the  operation  of  its  road,  and  that 
he  suffered  damages  thereby,  their  amount,  that  they 
have  not  been  paid,  also  the  corporate  character  of  the 
defendant  He  need  not  prove  negligence  on  part  of  the 
defendant  even  if  he  pleads  it.11  Nor  need  he  prove  that 
he  did  not  contribute  to  produce  the  injury.12  Having 
established  the  facts  above  stated  the  plaintiff  has  made 
his  case,  which  entitles  him  to  recover  unless  the  negli- 
gence which  the  law  thus  infers  is  overcome  by  proof  of 
due  care  and  freedom  from  negligence  on  the  part  of  the 
defendant.13  That  an  engine  caused  several  fires  on  the 

7  Slossen  v.  B.,  C.  R.  &  N.  R.  Co.,  50-338;    Code,  Sec.  3639;   Engle  v. 

60-215.  C.,  M.  &  St.  P.  R.  Co.,  77-661;  Rose 

s  Kesee  v.  C.  &  N.  W.  R.  Co.,  30-  v.  C.  &  N.  W.  R.  Co.,  72-625. 

78;  Garrett  v.  C.  &  N.  W.  R.  Co.,  12  See    references    to    preceding 

36-121;  and  see  Slossen  v.  B.,  C.  N.  section. 

&  N.  R.  Co.,  60-221;  Engle  v.  C.,  M.  is  Small  v.  C.,  R.  I.  &  P.  R.  Co., 

&  St.  P.  R.  Co.,  77-661.  50-338;  Slossen  v.  B.,  C.  R.  &  N.  R. 

9  Ormond  v.  C.  la.  Ry.  Co.,  58-  Co.,  60-214;  Babcock  v.  C.  &  N.  W. 

742.  R.  Co.,  62-593;  West  v.  C.  &  N.  W. 

"West  v.  C.  &  N.  W.  R.  Co.,  77-  R.  Co.,  77-654;  Leland  v.  C.,  M.  & 

654;  Engle  v.  C.,  M.  &  St.  P.  R.  Co.,  St.  P.  R.  Co.,  23  N.  W.  Rep.  page 

77-661;  see  Rose  v.  C.  &  N.  W.  Co.,  390;  Engle  v.  C.,  M.  &  St.  P.  R.  Co., 

72-625;  Seska  v  C.,  M.  &  St.  P.  R.  77-661;  Greenfield  v.  C.  &  N.  W.  R. 

Co.,  77-137.  Co.,  83-270. 

11  Small  v.  C.,  R.  I.  &  P.  R.  Co., 


106  ACTIONS    AGAINST   RAILWAY   COMPANIES.  [§  884. 

same  trip  may  be  shown  for  the  purpose  of  proving  that 
it  was  out  of  repair,  or  negligently  constructed,  or  negli- 
gently handled  or  operated.14  But  it  can  not  be  shown 
that  other  fires  occurred  along  the  right  of  way  in  the 
same  vicinity  shortly  after  the  engines  passed  over  the 
road  and  before  the  fire  that  destroyed  the  plaintiff's 
property.16  After  the  defendant  has  introduced  evi- 
dence showing  its  freedom  from  negligence  plaintiff  may 
rebut  the  same  by  evidence  of  a  circumstantial  character 
showing  defendant's  negligence.16  As  that  the  engine 
which  set  out  the  fire  had  set  out  other  fires  on  the  same 
trip,  or  that  the  fire  caught  in  dry  grass  and  weeds  on 
the  right  of  way,  or  other  facts  showing  defendant's  neg- 
ligence.17 The  fact  that  the  right  of  way  was  procured 
from  the  owner  of  the  land  on  which  the  damages  com- 
plained of  occurred,  will  not  prevent  a  recovery  if  such 
damages  could  not  properly  have  been  taken  into  con- 
sideration in  estimating  the  right  of  way  damages.18 
And  it  has  been  held  that  a  railroad  company  was  liable 
for  damages  by  fire  communicated  by  its  negligence  to  a 
building  of  a  third  person  and  from  such  building  to 
plaintiff's  buildings,  regardless  of  the  negligence  of  the 
owner  of  the  intermediate  structure.19  In  an  action  by 
a  tenant  to  recover  the  value  of  a  crop  destroyed  by  fire 
set  by  the  defendant's  engine,  it  appeared  that  the  plain- 
tiff did  not  pay  cash  rent  for  the  premises,  and  it  was 
held  error  not  to  permit  him  to  be  cross-examined  as  to 
whether  he  was  to  give  a  share  of  the  crop  as  rent.20  But 
one  who  is  a  trespasser  can  not  maintain  an  action 
against  a'railroad  company  for  negligence  in  the  destruc- 
tion of  crops  which  he  has  raised,  as  such  trespasser,  on 
land  to  which  he  has  no  title  and  of  which  he  was  not 

i*  Slossen  v.  B.,  C.  R.  &  N.  R.  Co.,  i«  Babcock  v.  C.  &  N  W   R  Co 

60-215;   Lanning  v.  C.,  B.  &  Q.  R.  62-593. 

Co.,  68-502;  West  v.  C.  &  N.  W.  R.  "  Engle  v.  C.,  M.  &  St  P  R  Co 

Co.,   77-654;    Johnson  v.  C.    &  N.  77-661. 

W.  R.  Co.,  77-666.  is  Rodemacher  v.  C.,  M.  &  St.  P. 

IB  Babcock  v.  C.  &  N.  W.  R.  Co.,  R.  Co.,  41-297. 

62-593;   Hudson  v.  C.  &  N.  W.  R.  is  Small  v.  C.,  R.  I.  &  P.  R   Co 

Co.,  59-581;   Bell  v.  C.,  B.  &  Q.  R.  55-582. 

Co.,  64-325.  20  Ormond  v.  C.  la.  R.  Co.,  58-742. 


§§  885-6.  ]       ACTIONS    AGAINST   RAILWAY    COMPANIES.  107 

in  possession,  and  which  were  on  such  land  when 
burned,21  but  it  would  be  otherwise  as  to  a  licensee,22  and 
as  to  what  is  sufficient  evidence  of  title.23 

§  885,  Of  damages. — In  this  class  of  actions  ordin- 
arily the  damages  recoverable  will  be  the  market  value  of 
the  property  burned  or  destroyed.  But  the  measure  of 
damages  will  depend  somewhat  on  the  character  of  the 
thing  destroyed.  Thus  if  an  action  be  brought  for  dam- 
ages for  burning  meadow  or  pasture  land,  it  is  clear 
that  plaintiff,  if  entitled  to  recover,  may  show  what  it 
would  cost  to  restore  the  meadow  or  pasture  to  as  good 
a  condition  as  it  was  in  before  the  fire,  and  such  sum 
will  be  the  measure  of  his  damages.  As  to  what  evidence 
is  proper  in  such  cases.24  And  if  growing  timber,  an 
orchard,  or  a  grove  is  burned,  the  value  of  it  to  the  farm 
on  which  it  is  situated  may  be  recovered,  and  this  may 
be  established  by  showing  the  value  of  the  farm  with 
the  grove  as  it  was  before  the  fire,  and  its  value  imme- 
diately after  the  fire,  and  doubtless  it  may  be  established 
in  other  ways.25 

§  886.  Of  the  petition.— It  would  seem  that  the 
petition  will  be  good  if  it  alleges  the  corporate  capacity 
of  defendant  and  the  fact  that  it  was  at  the  time  of  the 
alleged  injury  running  and  operating  a  railroad  over 
and  across  the  plaintiff's  farm,  that  while  so  operating  its 
road  its  engine  set  fire  to  and  burned  the  property  of 
plaintiff,  and  the  damage  resulting  therefrom,  and  that 
such  damage  is  unpaid.  It  is  not  necessary  to  aver 
negligence  on  part  of  defendant  nor  the  exercise  of  due 
care  on  part  of  plaintiff.26 

21  Murphy  v.  S.,  C.  &  P.  R.  Co.,  Co.,  66-606;   and  see  Hamilton  v. 
55-473;  Lewis  v.  C.,  M.  &  St.  P.  R.  D.  M.  &  K.  C.  R.  Co.,  84-131. 
Co.,  57-127;   Comes  v.  C.,  M.  &  St.  25  Brooks  v.  C.,  M.  &  St.  P.  R. 
P.  R.  Co.,  78-391.  Co.,  73-179;  see  Williamson  v.  Mil- 

22  Metzgar  v.  C.,  M.  &  St.  P.  R.  ler,  55-86;  Leiber  v.  C.,  M.  &  St.  P. 
Co.,  76-387;  Bullis  v.  C.,  M.  &  St.  R-  Co->  84-97;    Greenfield  v.  C.  & 
P   T?   On    7fi-fiSO  N-  w-  R-  Co.,  83-270;  Rowe  v.  C. 

2f  T/iVmon        Tf>     Jt,  M    W     T?     P«  &  N.   W.  R.  Co.,  71   N.  W.,  409. 

v,  LJ  v  ?  r ?'»  ^  ^  ?"  2S  Sma11  v"  C-  R'  L  &  P-  R-  Co" 
77-666;  Fish  v.  C.,  R.  I.  &  P.  R.  Co.,  50.341;  Rose  v  c  &  N  w  R  Co  ] 

72-625;  Engle  v.  C.,  M.  &  St  P.  R. 
2*  Vermilyea  v.  C.,  M.  &  St.  P.  R.     Co.,  77-661. 


108  ACTIONS   AGAINST   RAILWAY   COMPANIES.  [§  886. 

The  petition  may  be  in  the  following  form: 

FORM  OF  PETITION  FOR  DAMAGES  CAUSED  BY  FIRE  SET  BY 

AN  ENGINE  OF  A  RAILROAD  COMPANY. 
Title, 
Venue. 

Plaintiff  states:  That  at  the  time  of  the  fire  and  damages  herein- 
after mentioned  he  was  and  still  is  the  owner  and  in  possession  of  the 
following  described  premises  (here  describe  the  land)  and  that  the 
same  was  meadow  land  well  seeded  and  in  good  condition  for  raising 
grass,  and  that  at  the  time  hereinafter  mentioned  said  land  had  a  good 
crop  of  grass  thereon. 

That  on  the day  of ,  18 — ,  the  defendant  was  and  still 

is  a  corporation  and  railway  company  running  and  operating  its  rail- 
way  (over,  across  and  through  the  land  above  described)    in  

county,  Iowa,  by  the  name  and  style  in  which  it  is  sued  herein. 

That  at  the  time  aforesaid  and  while  so  operating  its  railway  as 
aforesaid,  fire  and  sparks  emitted  and  thrown  from  the  locomotive  en- 
gine run  by  defendant  on  its  said  railway  set  fire  to  the  grass  and 
weeds  upon  defendant's  right  of  way,  which  spread  to  and  burned  and 

destroyed  acres  of  the  grass  aforesaid  and  the  roots  thereof, 

being  situated  on  (here  describe  the  land)   the  property  of  plaintiff, 

to  his  damage  in  the  sum  of dollars,  no  part  of  which  has  been 

paid. 

Wherefore,  etc. 

,  attorney  for  plaintiff. 

It  will  be  noticed  that  the  above  form  does  not  con- 
tain any  allegation  that  the  fire  occurred  without  the 
fault  or  negligence  of  plaintiff,  and  in  view  of  the  recent 
decisions  of  the  supreme  court,  it  is  not  believed  such  an 
allegation  is  necessary.  If  the  action  is  for  the  burning 
of  articles  detached  from  the  realty  the  petition  can  be 
changed  accordingly.  If  it  is  sought  in  one  action  to 
recover  for  damages  caused  by  the  setting  of  several  fires, 
each  should  be  stated  in  a  separate  count  of  the  petition. 

FORM  OF  A   PETITION   TO  RECOVER   FROM  A   RAILWAY   COM- 
PANY FOR  SETTING  OUT  FIRE  CAUSING  DAMAGE 

TO  AN     ORCHARD. 
Title,     ) 
Venue.  ) 

The  plaintiff  states:  That  the  defendant  is  a  corporation  duly 
organized,  and  during  all  the  times  herein  referred  to  was  operating 
a  line  of  railway  through  —  —  county,  Iowa,  from  Clinton  to  Council 
Bluffs,  Iowa.  That  the  plaintiff  is  now,  and  for  many  years  last  past 


§  887.]  ACTIONS    AGAINST    RAILWAY   COMPANIES.  109 

has  been  the  owner  of  a  valuable  farm  of  about  500  acres  in   (here 

insert  description  of  land)  county,  Iowa,  and  was  such  owner 

and  in  possession  of  it  on  the day  of ,  18 — ,  and  defendant's 

line  of  railway  passed  through  said  farm.  That  upon  said  farm  there 
existed  a  large  apple  orchard,  producing  annually  a  crop  of  great 

value.    That  on  or  about  the day  of ,  18 — ,  the  defendant 

in  operating  its  said  railway  through  said  farm  carelessly  and  neg- 
ligently allowed  fire  to  escape  from  one  of  its  locomotive  engines  and 
set  on  fire,  and  injured  and  destroyed  of  the  property  of  plaintiff 
about  1,000  matured  apple  trees  to  plaintiff's  damage  in  the  sum  of 
about  | . 

Plaintiff  further  stated  that  he  is  unable  to  state  the  number  of 
the  engine  which  set  said  fire,  but  avers  that  it  was  a  freight  engine 
which  was  going  east  at  the  time  the  fire  was  set,  being  about  one 
o'clock  P.  M.  of  the day  of ,  18 — . 

Plaintiff  avers  that  the  defendant  negligently  allowed  said  engine 
to  get  out  of  order  and  to  remain  out  of  repair  and  was  guilty  of  neg- 
ligence in  operating  the  same  while  in  such  condition.  Plaintiff  is  un- 
able to  state  fully  the  defects  of  said  engine,  but  avers  that  it  was  in 
such  defective  condition  and  so  out  of  repair  that  while  in  motion 
it  would  throw  out  and  drop  large  chunks  and  coals  of  fire  along  the 
road  and  in  the  adjacent  fields. 

That  by  reason  of  said  facts  and  without  fault  of  this  plaintiff 
his  property  was  set  on  fire,  damaged  and  destroyed  by  the  negligent 

acts  of  the  defendant  in  the  sum  of dollars,  no  part  of  which 

has   been  paid.    Wherefore  plaintiff  demands  judgment  for  the  sum 

of  dollars,  with  interest  and  cost  of  suit. 

,  attorney  for  plaintiff. 

§  887.    Of  liability  of  railway  companies  for  killing 
stock,  etc. 

FORM  OF  PETITION  AGAINST  RAILROAD  COMPANY  FOR  STOCK 

KILLED  WHEN  ROAD  IS  NOT  FENCED. 
Title,    ) 
Venue,  f 

Plaintiff  states:     That  the  defendant  is  a  corporation  owning  and 

operating  a  railway  in  and  through county,  Iowa,  by  running  its 

engine  and  cars  thereon,  and  on  the  day  of ,  18 — ,  while 

so  engaged  in  running  and  operating  its  said  railway,  at  a  point  on  the 
said  road  in  said  county  where  the  defendant  had  the  right  to  fence 
the  same,  but  had  not  done  so,  said  defendant  by  its  agents,  servants 
and  employes  ran  an  engine  (or  its  train  of  cars)  against  and  upon  a 
certain  gray  mare  (then  running  at  large),  the  property  of  the  plaint- 
iff, and  of  the  value  of hundred  dollars,  whereby  said  mare  was 

killed    (or  injured).    That  on  the  day  of  ,   18 — ,    (more 

than  thirty  days  before  suit  is  brought  if  double  damages  are  claimed), 
plaintiff  caused  a  written  notice,  accompanied  with  an  affidavit  of  said 
killing  of  (or  injury  to)  said  mare  to  be  served  on  ,  the  station 


110  ACTIONS    AGAINST   EAILWAY   COMPANIES.  [§  888. 

(or  ticket)  agent  employed  in  the  management  of  the  business  of  the 

defendant  at ,  in  said  county.    Copies  of  said  notice  and  affidavit 

are  hereto  annexed  and  made  a  part  of  this  petition  marked  exhibits 
"A"  and  "B"  respectively.  That  said  defendant  has  neglected  and  re- 
fused to  pay  the  value  of  (or  damage  caused  to)  said  mare. 

Wherefore  plaintiff  demands  judgment  for  hundred  dollars 

(double  the  value  of  the  mare)  and  costs. 

(Signature.) 
(Attach  exhibits  "A"  and  "B.") 

EXHIBIT  "A." 

To  the  (name  of  railroad  company) :     You  are  hereby  notified  that 

on  the  day  of  ,  18 — ,  while  an  engine  (or  train  of  cars) 

was  being  run  and  operated  by  your  agents,  servants  <and  employes, 

upon  your  railroad  in  county,  at  a  point  on  said  road  in  said 

county  where  you  had  the  right  to  fence  the  same,  but  had  not  done 
so,  said  engine  (or  cars)  was  run  against  and  upon  a  gray  mare  be- 
longing to  the  undersigned  (then  running  at  large),  of  the  value  of 

hundred   dollars,  whereby  said  mare  was   killed   (or  injured). 

You  are  therefore  requested  to  pay  said  sum  of  hundred  dol- 
lars within  thirty  days  from  the  service  of  this  notice.  (That  there  is 
a  difference  between  the  amount  of  damages  claimed  in  the  petition 
and  notice  is  immaterial  unless  there  is  bad  faith  shown.27) 

(Signature  of  plaintiff.) 
EXHIBIT  "B." 
State  of  Iowa,  ) 

County.  J  B 

I  (name  of  owner  of  animal),  being  duly  sworn,  depose  and  say 

that  on  the day  of ,  18 — ,  I  was  the  owner  of  a  gray  mare, 

years  old  and  of  the  value  of hundred  dollars.    That  on 

said  day  said  mare  was  killed  (or  injured)  on  the  line  of  the  (name  of 

railroad)  in county,  Iowa,  by  an  engine  (or  train  of  cars)  being 

run  against  and  upon  said  mare  by  the  agents,  servants  and  employes 
of  said  railroad  company,  while  she  was  running  at  large,  at  a  point 
on  said  railroad  in  said  county  where  the  said  railroad  company  had  the 
right  to  fence  their  road  but  had  not  done  so. 

(Signature  of  plaintiff.) 

Subscribed  and  sworn  to  before  me  and  in  my  presence  by  , 

this day  of ,  18 — . 

[Seal.]  (Signature  of  officer.) 

§  888.  Same — Of  stock  running  at  large, — Before 
the  enactment  of  the  present  statute,28  it  was  held  that  to 
permit  cattle  to  run  at  large  was  not  negligence  on  part 
of  the  owner,  and  they  would  not  be  trespassers  if  found 
on  the  unfenced  track  of  a  railway,  and  if  the  track 

27  Valleau  v.  C.,  M.  &  St.  P.  R.         as  Code,  Sec.  2055. 
Co.,  73-723. 


§  888.]  ACTIONS   AGAINST   BAILWAT   COMPANIES.  Ill 

was  unfenced  the  company  would  be  held  to  the  use  of 
ordinary  care  and  diligence  in  running  its  trains,  but 
if  its  track  was  fenced  it  would  only  be  liable  for  injuries 
resulting  from  gross  or  willful  negligence.29  The  com- 
pany is  only  liable  for  injuries  to  stock  "running  at  large," 
and  not  when  it  is  in  charge  of  the  owner  and  being 
driven  by  him  at  the  time  of  the  injury.30  But  if  the 
injury  occurs  when  the  animal  has  escaped  from  the 
owner,  the  company  will  be  liable.31  When  a  horse  got 
on  the  track  where  it  should  have  been  fenced,  but  was 
not,  and  being  frightened  by  a  train  ran  into  a  bridge 
and  was  injured,  held,  that  the  company  was  liable.32 
Stock  in  a  field  through  which  the  railway  passes,  and 
where  the  company  has  failed  to  fence,  is  "running  at 
large,"33  and  the  company  is  liable  for  sheep  and  swine 
killed,  when  it  has  failed  to  fence,  even  though  it  is  un- 
lawful for  such  stock  to  run  at  large,34  and  it  is  liable 
in  such  cases  even  though  it  has  constructed  a  fence  suf- 
ficient to  turn  horses  and  cattle.35  A  team  hitched  to  a 
wagon  and  which  have  escaped  from  the  control  of  the 
owner  are  "live  stock  running  at  large,"  but  not  so  if  such 
loss  of  control  is  due  to  the  intoxication  of  the  driver  and 
they  wander  on  the  track.36  A  sucking  colt  will  be  con- 
sidered as  "running  at  large"  although  its  mother  is 
under  the  control. of  the  owner.37  Colts  escaping  from 

a  pasture  through  a  defective  gate  were  held  to  be  run- 

* 

29  Russel  v.  Hanley,  20-219;   Al-  34  Spence  v.  C.  &  N.  W.  R.  Co., 

ger  v.  M.  &  M.  R.  Co.,  10-268.  25-139;    Stewart  v.   Same,  27-282; 

so  Smith  v.  C.,  R.  I.  &  P.  R.  Co.,  Fernow  v.  D.  &  S.  W.  R.  Co.,  22- 

34-96.  528;  Lee  v.  Minneapolis  &  St.  L.  R. 

si  Hammond  v.  C.  &  N.  W.  R.  Co.,  66-131;  see  Pearson  v.  The  M. 

Co.,  43-168;  Listen  v.  Central  R.  of  &  St.   L.   P.  R.   Co.,  45-497;    Van 

L,  70-714;  Brentner  v.  Chicago,  M.  Horn  v.  Burlington,  C.  R.  &  N.  R. 

&  St.  P.  R.  Co.,  68-530;  Hinman  v.  Co.,  59-33  and  63-67;  Krebs  v.  Min- 

C.,  R.  I.  &  P.  R.  Co.,  28-491;  Welsh  neapolis  &  St.  L.  R.  Co.,  64-670. 

v.  C.,  B.  &  Q.  R.  Co.,  53-632;  Krebs  ss  Fritz  v.   M.  &  St.   P.   R.  Co., 

v.   M.   &  St.   L.    Ry.  Co.,     64-670;  34-337. 

Swift  v.  N.  M.  R.  Co.,  29-243;  Val-  ae  inman  v.  C.,  M.  &  St.  P.  Ry. 

leau  v.  C.,  M.  &  St.  P.  R.  Co.,  73-  Co.,  60-459;  Grove  v.  B.  C.  R.  &  N. 

723.  R.  Co.,  75-163. 

32  Young  v.  St.  L.,  K.  C.  &  N.  Ry.  ST  Smith  v.  K.  C.,  St.  J.  &  C.  B. 
Co.,  44-172.  R.  Co.,  58-622. 

33  Swift  v.  North  M.  R.  Co.,  29- 
243. 


112  ACTIONS   AGAINST   RAILWAY   COMPANIES.  [§  889. 

ning  at  large.38  Negligence  of  the  owner  not  amounting 
to  a  willful  act,  will  not  defeat  his  right  to  recover  where 
the  company  has  a  right  to  fence.39  See  further  as  to 
when  stock  is  running  at  large.40 

§  889.  Of  fencing  at  depot  grounds,  highways, 
etc. — The  company  is  not  required  to  fence  where  it 
would  not,  in  view  of  public  convenience,  be  fit  and 
proper  or  suitable  for  it  to  do  so,  and  depot  or  station 
grounds  may  be  left  uninclosed  when  the  business  of  the 
road  and  the  interests  of  the  public  require  it.41  And 
in  the  absence  of  proof  of  want  of  ordinary  care  the 
company  is  not  liable  for  stock  killed  on  such  grounds.42 
The  burden  is  on  the  company  to  show  that  the  place 
where  stock  is  injured,  and  where  there  is  no  fence,  is  a 
portion  of  the  station  grounds.  The  fact  that  a  switch 
is  there  maintained  will  not  necessarily  give  it  that  char- 
acter.43 It  is  negligence  in  the  owner  of  cattle  to  allow 
them  to  frequent  such  places  of  danger.44  The  pro- 
visions of  the  statute 45  making  railroad  companies  liable 
for  stock  killed  on  depot  grounds  by  trains  running  at  a 
greater  rate  of  speed  than  eight  miles  an  hour,  applies 
only  to  cases  when  the  stock  is  killed  on  such  grounds 
and  where  the  animal  killed  was  running  at  large.46 
The  company  is  not  required  to  fence  its  track  where  it 

33  Morrison  v.  B.,  C.  R.  &  N.  R  St.  P.  R.  Co.,  60-512;  Cole  v.  Chi- 

Co.,  84-663.  cago  &  N.  W.  R.  Co.,  38-311;    see 

39  inman  v.  C.,  M.  &  St.  P.  R.  Co.,  Peyton  v.  Chicago,  R.  I.  &  P.  R. 
60-459;  Smith  v.  K.  C.,  St.  J.  &  C.  Co.,  70-522;  Rhines  v.  C.  &  N.  W. 

B.  R.  Co.,  58-622;  Lee  v.  M.  &  St.      R.  Co.,  75-597. 

L.  R.  Co.,  66-131;   Spence  v.  C.  &  42  Packard  v.  111.  Cent.  R.  Co.,  30- 

N.  W.  R.  Co.,  25-139;  Hammond  v.  474. 

S.  C.  &  P.  R.  Co.,  49-450;  Miller  v.  «  Comstock  v.  D.  V.  R.  Co.,  32- 

C.  &  N.  W.  R.  Co.,  59-707;   Kuhn  376. 

v.   C.,  R.  I.   &  P.  R.   Co.,   42-420;  4*  Smith  v.  C.,  R.  I.  &  P.  R.  Co., 

Moriarity  v.  Cent.  la.  R.  Co.,  64-696.  34-506,  but  see  Miller  v.  Chicago  & 

40  Valleau  v.  C.,  M.  &  St.  P.  R.  N.  W.  Ry.  Co.,  59-707. 
Co.,  73-723;  Doran  v.  C.,  M.  &  St.  «  Code,  Sec.  2055. 

P.  R.  Co.,  73-115.  46  Monahan  v.  K.  &  D.  M.  R.  Co., 

"Latty  v.  Burlington,  C.  R.  &  45-523;  Sullivan  v.  W.,  St.  L.  &  P. 

M.  R.  Co.,  38-250;  Smith  v.  Chica-  Ry.  Co.,  58-602;  Smith  v.  K.  C.,  St. 

go,  R.  I.  &  P.  R.  Co.,  34-506;  Davis  J.  &  C.  B.  Ry.  Co.,  58-622;  Smith  v. 

v.  Burlington  &  M.  R.  R.  Co.,  26-  C.,  M.  &  St.  P.  Ry.  Co.,  60-512;  Mil- 

549;  Rogers  v.  Chicago  &  N.  W.  R.  ler  v.  C.  &  N.  W.  Ry.  Co.,  59-707; 

Co.,  26-558;    Durand  v.  Same,  26-  Story  v.  C.,  M.  &  St.  P.  R.  Co.,  79- 

559;    Packard  v.  Illinois  Cent.  R.  402;  Cohoon  v.  C.,  B.  &  Q.  R.  Co., 

Co.,  30-474;  Smith  v.  Chicago,  M.  &  90-169. 


§  889.]  ACTIONS   AGAINST   EAILWAT   COMPANIES.  113 

crosses  a  public  highway,  whether  it  be  a  de  jure  or 
de  facto  highway,  and  the  same  is  true  as  to  streets  and 
alleys.47  It  must  use  ordinary  and  reasonable  care  to 
avoid  injuring  stock  at  points  where  it  is  not  required 
to  fence.48  If  animals  are  running  at  large  in  violation  of 
a  city  ordinance,  and  come  upon  the  railroad  track,  they 
are  trespassers,  and  the  company  is  not  liable  for  the 
injury  unless  it  acts  wantonly  or  recklessly.49  The  com- 
pany has  no  right  to  fence  its  track  across  the  platted 
streets  and  alleys  of  a  town,  even  though  they  are  not 
used,  nor  in  a  condition  to  be  used.50  And  it  is  liable  for 
stock  killed  where  it  has  the  right  to  fence  and  has  not 
done  so,  unless  the  injury  is  caused  by  the  willful  act  of 
the  owner,51  and  this  is  so  even  though  the  road  is  not 
fully  completed  and  open  to  traffic.52  But  it  is  not  liable 
for  injuries  to  stock  which  break  through  a  fence  which 
is  reasonably  sufficient  to  turn  live  stock.53  When  an 
occupant  of  land  traversed  by  a  railroad,  allows  his  swine 
to  run  at  large  on  his  land,  and  they  go  on  the  track  at  a 
point  where  the  company  has  a  right  to  fence,  but  has 
not  fenced,  and  are  killed  by  a  train,  he  can  recover  and 

47  Soward  v.  C.  &  N.  W.  R.  Co.,  64-670;  Lee  v.  M.  &  St.  L.  Ry.  Co., 
33-386;    Andre   v.  C.   &  N.   W.  R.  66-131;  Jones  v.  The  G.  &  C.  U.  R. 
Co.,  30-107;   Long  v.  Central  I.  R.  Co.,  16-6;  McCool  v.  Same,  17-461; 
Co.,  64-657;  Lathrop  v.  Central  la.  Koons  v.  Same,  23-493;    Helphery 
R.  Co.,  69-105;  Coyle  v.  Chicago,  M.  v.  C.,  R.  I.  &  P.  Ry.  Co.,  29-480; 
&  St.  P.  R.  Co.,  62-518;   Smith  v.  Andre  v.vC.  &  N.  W.  Ry.  Co.,  30- 
Kansas  C.,  St.  J.  &  C.  B.  Ry.  C.,  107;  Soward  v.  Same,  30-551;  Stew- 
58-622;  Blanford  v.  M.  &  St.  L.  R.  art  v.  B.  &  M.  R.  Co.,  32-561;  Davis 
Co.,  71-310.  V.  C.,  R.  I.  &  P.  Ry.  Co.,  40-292;  Mc- 

48  Lawson  v.  Chicago,  R.  I.  &  P.  Cormick  v.  Same,  41-193;  Davis  v. 
R.  Co.,  57-672;  Parker  v.  Dubuque  B.  &  M.  R.  R.  Co.,  26-549;   Brandt 
&  S.  W.  R.  Co.,  34-399;  Whitbeck  v.  C.,  R.  I.  &  P.  Ry.  Co.,  26-114; 
v.  D.  &  P.  R.  Co.,  21-103;   Balcom  Treadway  v.  The  S.  C.  &  St.  P.  R. 
v.  D.  &  S.  C.  R.  Co.,  21-102;  Plaster  Co.,  43-527;  Aylesworth  v.  C.,  R.  I. 
v.  Illinois    Cent.    R.  Co.,    35-449;  &  P.  Co.,  30-459;  Lemmon  v.  C.  & 
Cleveland  v.  Chicago  &  N.  W.  R.  N.  W.  Ry.  Co.,  32-151;  Inman  v.  C., 
Co.,  35-220;  Schneir  v.  Chicago,  R.  M.  &  St.  P.  R.  Co.,  60-459;   Smith 
I.  &  P.  R.  Co.,  40-337;   Jackson  v.  v.  K.  C.,  St.  J.  &  C.  B.  R.  Co.,  58- 
Chicago  &  N.  W.   R.  Co.,  36-451;  622;  Spence  v.  C.  &  N.  W.  R.  Co., 
Edson  v.  Central  R.  Co.,  40-47.  25-139;  Miller  v.  C.  &  N.  W.  R.  Co., 

49  Van  Horn  v.  B.,  C.  R.  &  N.  R.  59-707;  Peyton  v.  C.,  R.  I.  &  P.  R. 
Co.,  59-33;  Doran  v.  C.,  M.  &  St.  P.  Co.,  70-522. 

R.  Co.,  73-115.  52  Glandon  v.  C.,  M.  &  St.  P.  Ry. 

so  Lathrop  v.  C.  I.  Ry.  Co.,  69-  Co.,  68-457. 

105;  Blanford  v.  M.  &  St.  L.  R.  Co.,  53  Shellabarger  v.  C.,  R.  L  &  P. 

71-310.  Ry.  Co.,  66-18. 

si  Krebs  v.  M.  &  St.  L.  Ry.  Co., 

Vol.  II— 8 


114  ACTIONS   AGAINST   EAILWAT   COMPANIES.       [§§  890-1. 

need  not  prove  that  the  killing  was  the  result  of  negli- 
gence of  the  company's  servants,54  and  the  provisions  of 
the  code,55  fixing  what  shall  constitute  a  lawful  fence,  do 
not  determine  the  character  of  fence  which  a  railroad 
company  must  build  against  "live  stock"  running  at 
large.56  A  railroad  company  has  the  right  to  fence  its 
track  in  towns  on  lands  situated  beyond  streets  and 
highways.57 

§  890.  Same — Of  failure  to  repair  fences. — The 
company  will  be  liable  for  stock  killed  or  injured  on  its 
track,  by  reason  of  its  failure  to  keep  the  fences  in  re- 
pair which  have  been  erected  along  its  line  of  road,  but 
before  it  will  be  liable  in  such  cases  it  must  have  knowl- 
edge, actual  or  implied,  that  the  fence  was  out  of  repair, 
and  have  a  reasonable  time  thereafter  to  put  it  in  proper 
condition,  and  the  same  is  true  when  gates  and  bars  are 
left  open  by  third  persons.58  And  if  the  company  has 
used  necessary  care  and  caution  and  without  their  fault 
the  fence  is  throw^n  down  or  gate  left  open  by  some  third 
person,  he  will  be  liable  for  the  injury  which  may  result 
and  not  the  company.59  One  who  has  agreed  with  the 
company  to  maintain  a  fence  between  his  land  and  the 
railroad  is  estopped  from  suing  for  injuries  to  his  stock 
caused  by  want  of  such  fence,  or  by  defects  therein,  and 
so  are  his  tenants.60 

§  891.  Same — Of  double  damages.61 — The  provi- 
sions of  the  statute  allowing  double  damages  are  consti- 

54  Lee  v.  M.  &  St.  L.  Ry.  Co.,  66-  Dunn  v.  C.  &  N.  W.  R.  Co.,  58-674; 

131.  Fritz  v.  K.  C.,  St.  J.  &  C.  B.  R.  Co., 

ss  Code,  Sec.  2367.  61-323;  Bothwell  v.  C.,  M.  &  St.  P. 

SB  Lee  v.  M.  &  St.  L.  Ry.  Co.,  66-  R.  Co.,  59-192;  McKinley  v.  C.,  R. 

131.  I.  &  P.   R.   Co.,  47-76;    Mackie  v. 

57Coyle  v.   C.,  M.  &  St.  P.  Ry.  Cent.  R.  of  I.,  54-540;   Milliard  v. 

Co.,  62-518  Chicago  &  N.  W.   R.   Co.,  37-442; 

ss  Ayelsworth  v.  The  C.,  R.  I.  &  Butler  v.  C.  &  N.  W.  R.  Co.,  71- 

P.  Ry.  Co.,  30-459;  Davis  v.  Same,  206;  Wait  v.  B.  C.  R.  &  N.  R.  Co., 

40-292;    McCormick    v.  Same,    41-  74-207;  Taylor  v.  C.,  St.  P.  &  K.  C. 

193;    Perry  v.  The  D.  &  S.  W.  R.  R.  Co.,  76-753. 

Co.,  36-102;  Lemmon  v.  C.  &  N.  W.  so  Russell  v.  Hanley,  20-219. 

Ry.  Co.,  32-151;  Hammond  v.  Same,  eo  Warren  v.  The  K.  &  D.  M.  R. 

43-168;   Bartlett  v.  The  D.  &  S.  C.  Co.,  41-484. 

R.  Co.,  20-188;  Bennett  v.  W.,  St.  L.  ei  Payne  v.  K.  C.,  St.  J.  &  C.  B. 

&  P.  Ry.  Co.,  61-355;   Brentner  v.  R.  Co.,  72-214. 
C.,   M.   &   St.  P.   Ry.   Co.,   58-625; 


§  892.]  ACTIONS   AGAINST  KAIL  WAT   COMPANIES.  115 

tutional.62  The  action  is  barred  in  five  years.63  Double 
damages  can  not  be  recovered  by  reason  of  an  injury  re- 
sulting because  the  company  has  fenced  where  it  should 
not.64  An  action  for  double  damages  may  be  maintained 
in  the  courts  of  this  State  for  an  injury  occurring  in  an- 
other State  which  has  a  statute  authorizing  the  recovery 
of  such  double  damages.65 

§  892.  Same — Of  the  affidavit  and  notice. — To  ren- 
der the  company  liable  for  double  damages  for  stock 
killed,  it  must  be  served  with  a  written  notice  of  the 
killing  or  injury,  accompanied  by  the  original  affidavit 
provided  for  by  the  statute;  a  copy  of  the  affidavit  is  not 
sufficient,  but  the  notice  may  be  served  by  copy,  and  the 
sufficiency  of  the  service  is  a  question  for  the  court.66 
The  affidavit  need  not  be  made  by  the  owner  of  the  stock 
killed,  it  may  be  made  by  any  one  cognizant  of  the  facts.67 
Nor  need  the  affidavit  and  notice  be  separate.  The 
notice,  if  containing  all  the  statements  required  in  the 
affidavit  and  sworn  to,  will  be  sufficient.68  The  written 
notice  is  only  necessary  when  double  damages  are 
claimed.69  Service  of  the  notice  and  affidavit  should  be 
made  by  delivering  the  original  affidavit  and  a  copy  of 
the  notice  to  the  agent  of  the  company;  they  need  not 
be  read.70  A  return  stating  that  the  notice  was  served 
on  a  certain  person,  "being  the  station  agent  of  said 
road,"  etc.,  held  to  show  a  good  service.71  The  original 

62  Jones  v.  The  Galena  &  C.  U.  «?  Henderson  v.  The  St.  L.,  K.  C. 

R.  Co.,  16-6;  Tredway  v.  S.  C.  &  St.  &  N.  R.  Co.,  36-387. 

P.  Ry.  Co.,  43-527;  Welsh  v.  C.,  B.  «s  Mendell  v.  C.  &  N.  W.  R.  Co., 

&  Q.  R.  Co.,  53-632;  Mackie  v.  Cent.  20-9. 

Ry.  of  Iowa,  54-540 ;  Chines  v.  C.  69  Rodemacher  v.  M.  &  St.  P.  R. 

&  N.  W.  R.  Co.,  75-597.  Co.,  41-297. 

es  Koons  v.  C.  &  N.  W.  Ry.  Co.,  ™  Mendell  v.  C.  &  N.  W.  Ry.  Co., 

23-493.  20-9;  Brentner  v.  C.,  M.  &  St.  P.  R. 

e*  Davis  v.  C.,  R.  I.  &  P.  R.  Co.,  Co.,  68-530;  Brockert  v.  Central  la. 

40-292.  R.  Co.,  82-369;   McNaught  v.  C.  & 

es  Boyce  v.  Wabash  R.  Co.,  63-70.  N.  W.  R.  Co.,  30-336;  Campbell  v. 

e«  McNaught  v.  The  C.  &  N.  W.  C.,  R.  I.  &  P.  R.  Co.,  35-334;  Kyser 

Ry.  Co.,  30-336;  Cole  v.  Same,  38-  v.  K.  C.,  St.  J.  &  C.  B.  R.  Co.,  56- 

311;  Campbell  v.  The  C.,  R.  I.  &  207;  Listen  v.  Central  la.  R.  Co., 

P.  Ry.  Co.,  35-334;    Van  Slyke  v.  70-714. 

Chicago,  St.  P.  &  K.  C.  R.  Co.,  80-  "  Welsh  v.  C.,  B.  &  Q.  R.  Co.,  53- 

620;  Brockert  v.  Central  la.  R.  Co.,  632;  Schlengener  v.  C.,  M.  &  St.  P. 

82-369.  Ry.  Co.,  61-235. 


116  ACTIONS    AGAINST   BAILWAY   COMPANIES.  [§  893. 

notice  and  affidavit  of  loss  which  have  been  served  on 
defendant's  agent,  are  not  evidence  of  such  service,  in 
such  sense  that  notice  on  the  defendant  to  produce  them 
must  be  shown  before  other  evidence  thereof  can  be  in- 
troduced to  show  double  liability.72  The  affidavit  need 
not  designate  the  place  of  the  injury.73  The  affidavit 
may  be  amended  for  the  purpose  of  perfecting  the  jurat, 
but  the  company  will  not  be  allowed  thirty  days  there- 
after in  which  to  pay  the  claim  and  escape  double  dam- 
ages; service  of  the  affidavit  may  be  made  by  the  claim- 
ant, or  any  other  person,  and  if  served  by  an  officer,  and 
his  return  is  made  thereon,  it  is  admissible  as  evidence.74 
Whether  proof  of  service  of  notice  and  affidavit  upon 
the  company  can  be  made  by  an  ex  parte  affidavit 
quaBre.75 

§  893.  Same — Of  practice,  evidence,  etc. — When 
stock  is  injured  through  the  negligence  of  a  railroad  com- 
pany it  is  its  duty  to  take  proper  care  of  the  injured  ani- 
mals and  if  it  fails  to  do  so,  the  owner  may  take  care  of 
them  and  recover  from  the  company  reasonable  com- 
pensation therefor.76  Plaintiff,  in  order  to  recover  for  an 
injury  to  an  animal,  must  prove  his  ownership  of  it.77 
The  law  will  not  be  so  construed  as  to  authorize  the  re- 
covery of  double  damages  for  injury  to  stock  on  depot 
grounds  caused  by  negligence  in  operating  trains  there- 
on at  an  illegal  rate  of  speed.78  If  the  company  is  com- 
pelled to  pay  for  injuries  to  animals  of  a  third  person 
which  have  got  on  the  track  through  a  gate  at  a  private 
crossing  wrongfully  removed  by  the  land  owner  for  whom 
the  gate  was  constructed  it  may  recover  from  him  the 

72  Brentner  v.   C.,   M.  &  St.  P.  ™  Brentner  v.  C.,  M.  &  St.  P.  Ry. 

Ry.  Co.,  58-625;  Smith  v.  K.  C.,  St.  Co.,  58-625. 

J  &  C.  B.  R.  Co.,  58-622;  McLenon  ™  Finch  v.   C.  R.   of  I.,   42-304; 

v.  K   C.,  St.  J.  &  C.  B.  R.  Co.,  69-  Manwell  v.  B.,  C.  R.  &  N.  R.  Co., 

320.  80-662. 

fsMundhenk  v.  C.  I.  R.  Co.,  57-      C07i™sh  v:  C"  B'^£'  R'oC?;' 
718  53-632;  Morrison  v.  B.  C.  R.  &  N. 

T:  Brentner  v.  C.,  M.  &  St.  P.  R.  *'  J^r^0"    '  C"  *  &  ^ 

Co.,  58-625;   Brandt  v.  Chicago,  R.  'TS  Miller  v.  C.  &  N.  W.  R.  Co., 

I.  &  P.  R.  Co.,  26-114;   Mundhenk  59-707;    Monahan  v.  Keokuk  &  D.' 

v.  Central  la.  R.  Co.,  57-718.  M.  R.  Co.,  45-523. 


§  894.]  ACTIONS    AGAINST   BAILWAY    COMPANIES.  117 

amount  so  paid.70  A  copy  of  the  notice  and  affidavit 
served  on  the  company,  duly  sworn  to  by  the  person  mak- 
ing such  service,  is  admissible  in  evidence  to  prove  the 
fact  of  such  service.80  In  an  action  for  the  value  of  stock 
killed  by  reason  of  want  of  fence  the  burden  is  on  the 
company  to  prove  that  it  had  a  sufficient  fence.81  Evi- 
dence of  service  of  notice  and  affidavit  in  a  particular 
case  held  not  sufficient.82  If  the  petition  fails  to  set  out 
the  notice  served  on  the  company  the  question  should  be 
raised  by  demurrer,  or  it  will  be  waived.83  Individuals 
building  and  operating  a  railroad  seem  to  be  within  the 
spirit,  if  not  the  letter  of  the  law  as  to  liability.84  So 
a  lessee  of  a  railway  is  liable  as  well  as  the  company 
owning  the  road.85  And  a  receiver  operating  a  road  is 
liable.86 

§  894.  Same— Of  speed  of  trains. — A  railway  com- 
pany is  not  authorized  to  diminish  the  speed  of  a  train  to 
avoid  injury  to  stock  if  by  so  doing  it  augments  the  dan- 
ger to  passengers.87  In  the  absence  of  statutory  limita- 
tions upon  the  speed  of  railway  trains  no  conceivable 
rate  is  evidence  of  negligence  per  se.88 

79  C.  &  N.  W.  R.  Co.  v.  Dunn,  59-  «s  Clary   v.    Iowa  M.  R.  Co.,  37- 

619.  344;  Stephens  v.  D.  &  St.  P.  R.  Co., 

so  McLemon  v.  K.  C.,  St.  J.  &  C.  36-327;  Bower  v.  B.  &  S.  W.  R.  Co., 

B.  Ry.  Co.,  69-320.  42-546. 

si  Small  v.  C.,  R.  I.  &  P.  R.  Co.,  se  Brockert  v.  Central  la.  R.  Co., 

50-338;  Brentner  v.  C.,  M.  &  St.  P.  82-369;  Schurr  v.  O.  &  St.  L.  R.  Co., 

Ry.  Co.,  68-530.  67  N.  W.,  280. 

82  Keyser  v.  K.  C.,  St.  J.  &  C.  B.  ST  Sandham  v.  The  C.,  R.  I.  &  P. 

R.  Co.,  56-440.  R.  Co.,  38-88. 

ss  McKinley  v.  C.,  R.  I.  &  P.  R.  ss  McKonkey  v.  C.,  B.  &  Q.  R. 

Co.,  47-76.  Co.,  40-205;  Cohoon  v.  C.,  B.  &  Q. 

si  Liddle  v.  K.,  Mt.  P.  &  M.  R.  R.  Co.,  90-169. 
Co.,  23-378. 


CHAPTER  LIV. 

OF  ACTIONS  OF  REPLEVIN. 

Sec.  895.  When  the  action  lies. 

896.  When  the  action  does  not  Hie. 

897.  Of  place  of  bringing  suit, 

898.  Of  the  parties. 

899.  Of  the  proceedings. 

900.  Of  the  petition. 

901.  Of  the  bond. 

902.  Of  the  writ  of  replevin. 

903.  Of  service  of  the  writ 

904.  Of  the  delivery  bond. 

905.  Of  the  sheriff's  return. 

906.  Of  pleadings,  practice,  evidence,  etc. 

907.  Of  the  verdict. 

908.  Of  the  judgment,  etc. 

909.  Of  the  execution. 

910.  Of  proceedings  when  property  has  been  concealed. 

911.  Of  detinue. 

Section  895.  When  the  action  lies. — Plaintiff  may 
bring  his  action  and  obtain  possession  of  the  property 
at  the  commencement  of  the  action,  or  he  may  bring  his 
action  in  detinue  for  the  delivery  of  the  property  claimed 
after  judgment.  The  action  lies  for  the  recovery  of  spe- 
cific personal  property1  by  one  not  in  possession  of  it.2 
And  if  the  plaintiff  is  entitled  to  the  present  possession  of 
the  property  he  can  maintain  the  action.3  He  need  not  be 
the  absolute  owner  or  general  owner  of  the  property;  if 
he  has  a  special  property  in  the  goods  which  entitles  him 
to  their  possession,  it  is  sufficient.4  And  if  he  has  the 

1  Code,  Sec.  4163;  Savery  v.  Hays,  *  Cassel  v.  Western  Stage  Co.,  12- 
20-25.  47;    Kingsbury    v.    Buchanan,  11- 

2  Hove  v.  McHenry,  60-227;  Cof-  387;  Jones  v.  Hetherington,  45-681; 
fin  v.  Gephart,  18-256.  Goldsmith  v.  Willson,  67-662;  Har- 

s  McCoy  v.  Cadle,  4-557;   Camp-      vey  v.  Pinkerton,  70  N.  W.,  192. 
bell  v.  Williams,  39-646;;  see  Dra- 
per v.  Ellis,  12-316. 

118 


§  895.]  ACTIONS    OF    EEPLEVIN.  119 

mere  naked  right  of  possession  he  may  maintain  the  ac- 
tion of  replevin  against  one  who  deprives  him  of  such 
possession,  having  no  right  to  the  property  himself.5  jBut 
his  right  to  the  possession  of  the  property  must  exist 
when  the  action  is  commenced.6  The  plaintiff  must  re- 
cover on  the  strength  of  his  own  title,  no  matter  what  the 
right  or  title  of  the  defendant  may  be,  andjjlaintiff,  in 
order  to  maintain  the  action,  must  be  entitled  to  the  pres- 
ent ^Dossession  of  the  property.7  The  action  will  lie  for 
any  personal  goods  that  can  be  identified.8  It  lies  for  a 
note,  the  consideration  of  which  has  failed,  or  which  has 
been  paid  and  has  been  attached  by  a  creditor  of  the 
holder,  even  before  maturity.9  It  lies  at  the  instance  of  a 
party  whose  property  has  been  improperly  seized  by  an 
officer.10  It  lies  for  a  fixture  which  has  been  severed  from 
the  realty.11  It  lies  at  the  instance  of  the  owner  for  the 
recovery  of  the  possession  of  a  building  erected  under  an 
agreement  with  the  owner  of  the  land  upon  which  it  is 
placed,  that  the  lessee  should  have  free  use  of  the  land  as 
long  as  the  house  should  remain  thereon.12  And  so  it  lies 
to  recover  a  building  which  is  being  wrongfully  removed 
from  the  land  of  the  owner.13  It  lies  where  an  officer  with- 
out authority  seizes  property  for  taxes.14  It  lies  to  re- 
cover possession  of  a  draft  which  has  been  rendered  void 
after  its  acceptance  by  reason  of  material  alterations.16 

5  McCoy    v.    Cadle,    4-557,     and  10  Smith  v.   Montgomery,  5-370; 

cases  cited;   Cumberledge  v.  Cole,  Wilson   v.   Stripe,   4   G.   Gr.,   551; 

44-181;    Beroud  v.   Lyons,  85-482;  Miller  v.   Bryan,  3-58;    Gimble  v. 

Bray   v.   Wise,    82-581;    Kelley   v.  Ackley,    12-27;    Shea   v.   Watkins, 

Cosgrove,    83-229;    Briggs    v.    Me-  12-605;     Cooley    v.    Davis,  34-128; 

Ewen,  77-303;    Smith  v.   Eals,  81-  Campbell     v.     Williams,     39-446; 

235;  Hibbard  v.  Zenor,  82-505.  Ramsden  v.  Wilson,  49-211;  Armel 

«Alden    v.    Carver,    13-253;    see  v.     Lendrun,    47-535;     Ralston    v. 

Cumberledge  v.  Cole,  44-181.  Black,  15-47;  Davis  v.  Gambert,  57- 

T  Marienthal    v.     Shafer,  '  6-223;  239;   Seaton  v.  Higgins,  50-305. 

McCoy  v.  Cadle,  4-557;  Hamilton  v.  n  Congregational  Society,  etc.,  v. 

Iowa  City  Nat'l  Bk.,  40-307;  Hardy  Fleming,  11-533. 

v.  Moore,  62-65;  Litqfcfield  v.  Halli-  12  Dist.  Twp.  v.  Moorehead,  43- 

gan,  48-126;    Burrows  v.  Waddell,  466. 

52-195;    McNorton    v.    Akers,    24-  is  Crum  v.  Hill,  40-506. 

369.  "Buel  v.  Ball,  20-282;    Macklot 

s  Code,   Sec.  4163;     Ellsworth  v.  v.  Davenport,  17-379. 

Henshall,  4  G.  Gr.,  417.  15  Smith  v.  Eals,  81-235. 

»  Savery  v.  Hays,  20-25;  Graff  v. 
Shannon,  7-508. 


120  ACTIONS    OF   REPLEVIN.  [§  896. 

§  896.     When  the  action  does   not   lie.  —If  the  de- 

fendant is  not  in  possession  of  the  property,  and  does  not 
claim  any  interest  in  it,  nor  collude  with  another  to  keep 
possession  of  it,  the  action  will  not  lie.16  One  who  pur- 
chases and  takes  possession  of  personal  property  subject 
to  mortgages  thereon,  which  he  assumes  to  pay,  can  not, 
in  an  action  of  replevin  in  his  own  name,  recover  on  the 
ground  that  he  is  the  agent  of  the  mortgagees.17  So 
where  the  possession  and  title  to  the  property  was  never 
in  the  debtor,  it  seems  the  action  will  not  lie.18  Nor  will 
it  lie  in  favor  of  a  party  who  has  contracted  for  personal 
property,  but.  has  paid  no  part  of  the  purchase  11101103-,  and 
no  time  or  place  is  fixed  for  the  delivery  of  tfye  property, 
unless  the  purchase  price  is  first  tendered.19  And  an 
agreement  of  a  debtor  to  deliver  certain  personal  property 
to~his  creditor,  will  not  enable  the  latter  to  maintain  the 
action  if  the  former  fails  to  deliver  it.20  Nor  will  the  ac- 
tion lie  when  the  possession  is  rightful,  until  after  demand 
is  made.21  And  when  proceedings  are  commenced  under 
the  prohibitory  liquor  law  by  seizing  intoxicating  liquors 
alleged  to  be  owned  and  kept  for  sale  in  violation  of  law, 
the  case  can  not  be  taken  away  from  the  tribunal  whose 
jurisdiction  has  attached  by  instituting  an  action  of  re- 
plevin.22 Nor  will  the  action  lie  against  a  sheriff  for  prop- 
erty held  by  him  subject  to  an  execution,  unless  the  plain- 
tiff prior  to  the  commencement  of  the  action  gives  the 
sheriff  written  notice  of  his  ownership  thereof.23  Nor  to 


i6  Coffin  v.  Gephart,  18-256.  Plate,   77-17;    Peck  v.   Bonbright, 

IT  McNorton  v.  Akers,  24-369.  75-98. 

is  Rutlege  v.  Evans,  11-287.  FU^?JST*?1:  5'438=  C°°ley  V' 

19  W*rt  v    Tivineston    29-217  Davis>  34-128;   State  V"  Harris-  38- 
*                                               r17'  242;    Weir    v.    Allen,   47-482,    and 

20  Berry  v.  Berry,  31-415.  cases  cited 

21  Funk  v.  Israel,  5-438;  Smith  v.  23  Finch    v.     Hollinger,    43-598; 
Montgomery,     5-370;      Cooley     v.  Raster  v.   Pease,  42-488;    Gray   v. 
Davis,  34-128;  Stanchfield  v.  Palm-  Parker,     53-5j05;      Richabaugh     v. 
er  4  G.  Gr.,  23;  Gilchrist  v.  Moore,  Bada,   50-56;   Peterson  v.  Espeset, 
7-9;  Smith  v.  McLean,  24-322;  Red-  48-262;     Gray    v.    Parker,     49-624; 
ding  v.  Page,  52-406;  Oswego  S.  Co.  Burrows  v.  Waddell,  52-195;  Wads- 
v.   Lendrum,   57-573;    Robinson   v.  worth  v.  Wallinker,  41-395;    West 
Keith,  25-321;  Delaney  v.  Holcomb,  v.  St.  John,  63-287;  Baxter  v.  Ray, 
26-94;  Jones  v.  Clark,  37-586;  Leek  62-336;    Allen  v.  Wheeler,   54-628; 
v.  Chesley,  67  N.  W.,  580;  Ruiter  v.  Wells  v.  Chapman,  59-658. 


3  897.]  ACTIONS    OF    REPLEVIN.  121 

recover  back  a  horse  which  was  traded  on  Sunday.24  The 
action  may  lie  against  the  sheriff  for  property  held  by 
him  subject  to  an  execution  where  no  notice  is  served  on 
him  as  provided  by  law,  if  the  want  of  such  notice  is  not 
pleaded  in  the  answer.25  The  action  will  not  lie  to  take 
property  from  the  possession  of  an  officer  upon  the  mere 
allegation  that  the  judgment  has  been  satisfied.26  Where 
an  officer  acting  under  a  tax  wrarrant  for  the  collection  of 
taxes  erroneously  assessed  by  a  board  having  competent 
authority,  seizes  property,  replevin  will  not  lie  therefor.27 
Nor  will  it  lie  against  one  who  does  not  detain  from  the 
plaintiff  the  possession  of  the  property.28  Where  the 
sheriff  in  levying  on  personal  property  under  an  execution 
simply  made  a  list  of  the  property  and  took  a  delivery 
bond  from  the  execution  defendant  therefor,  it  was  held 
such  defendant  could  not  maintain  replevin  against  the 
officer  for  the  property.29  Ordinarily  it  will  not  lie  to  try 
the  title  to  an  office,  and  especially  so  if  the  holder  of  it  is 
not  a  party  to  the  action.30  Nor  can  the  interests  of  part- 
ners be  determined  in  an  action  of  replevin.31  Nor  will 
it  lie  at  the  instance  of  one  joint  owner  of  property  when 
it  can  not  be  divided.32  So  it  has  been  held  not  to  lie  for 
the  recovery  of  property  sold  when  it  was  claimed  the 
consideration  had  failed.33 

§  897.  Of  place  of  bringing  suit. — The  action  must 
be  brought  in  the  county  where  the  property,  or  some  part 
of  it,  is  situated,34  or  where  the  defendant  resides.35  It 
can  not  be  brought  in  the  county  from  which  the  property 
has  been  wrongfully  removed,  unless  that  be  the  defend- 
ant's residence.36  And  it  has  been  held  that  where  the  ac- 
tion wras  begun  in  the  county  where  the  property  was 

—»  24  Kelley  v.  Cosgrove,  83-229.  cases  cited;  see  Francis  v.  Young, 

25  Warder  v.  Hoover,  51-491.  24-375. 

26  Armel  v.  Lendrum,  47-535.  33  Gittings  v.  Carter,  49-338. 
27Belbo     v.     Henderson,    21-66;  34  Code,  Sec.  4163. 

Emerick  v.  Sloan,  18-139.  35  Hibbs  v.  Dunham,  54-559;  Par- 

28  Hove  v.  McHenry,  60-227.  ker  v.    Norris,   56-295;    Code,   Sec. 

26  Same  as  No.  28.  4168. 

*o  Lufkin  v.  Preston,  52-235;  see          se  Hibbs  v.  Dunham,  54-559;  Par- 

57-28.  ker   v.    Norris,    56-295;    Porter    v. 

si  Kuhn  v.  Newman,  49-424.  Dalhoff,   59-459. 

32  Read  v.  Middleton,  62-317,  and 


122  ACTIONS    OF   KEPLEVIN.  [§  898. 

situated,  but  against  a  defendant  residing  in  another 
county,  a  failure  to  secure  the  property  under  the  writ, 
did  not  defeat  the  jurisdiction  of  the  court  to  entertain 
the  case  to  the  end,  and  defendant  was  not  entitled  to  have 
the  case  removed.37  Plaintiff  need  not  aver  the  place  of 
detention  of  the  property,  and  no  issue  can  be  raised  on 
that  question  except  by  a  motion  to  change  the  place  of 
trial  to  the  proper  county.38 

§  898,  Of  the  parties. — The  action  should  be 
brought  by  the  party  claiming  possession  of  the  prop- 
erty.39 One  partner  can  not  maintain  the  action  against 
the  other.40  The  owner  of  personal  property  taken  by  an 
officer,  under  a  writ  of  replevin  in  an  action  to  which  such 
owner  wras  not  a  party,  may  bring  an  action  and  replevin 
the  property.41  And  an  assignee  in  bankruptcy  may 
bring  an  action  to  recover  property  belonging  to  the  bank- 
rupt's estate,  when  the  right  thereto  does  not  depend  on 
the  bankrupt  law;  and  if  the  assignee  has  such  an  in- 
terest that  he  could  intervene,  he  can  bring  an  indepen- 
dent action  for  the  recovery  of  the  property.42  If  a  third 
person  claims  the  property,  or  any  of  it,  the  plaintiff  may 
amend  his  petition  and  bring  him  in  as  a  co-defendant,  or 
the  defendant  may  obtain  his  substitution  in  the  proper 
mode,  or  the  claimant  may  himself  intervene,  by  the 
process  of  intervention.43  But  the  remedy  by  intervention 
is  not  exclusive,  and  an  independent  action  may  be  main- 
tained by  the  third  person  claiming  the  property.44  In 
case  of  intervention  the  judgment  concludes  all  the  par- 
ties.45 Where  one  is  substituted  for  the  sheriff  in  an  ac- 

3T  Laughlin  v.  Main,  63-580;   see  <o  Kuhn  v.  Newman,  49-424. 
Goldsmith  v.  Willson,  67-662;  For-  *i  Davis  v.  Gambert,  57-239. 
ter  v.  Dalhoff,  59-459.  «  Wetmore  v.  McMillan,  57-344. 
ss  Kelley  v.  Cosgrove,  83-229.  «  Code,  Sec.  4166;  Bevan  v.  Hay- 
3»  Hove  v.  McHenry,  60-227;  Me-  len,  13-122;  Witter  v.  Fisher,  27-9; 
Coy  v.  Cadle,  4-557;   Pangburn  v.  Davis    v.    Gambert,    57-239;    Wet- 
Partridge,  7  Johns,  140;   Cassel  v.  more  v.  McMillan,  57-344;   Dupont 
Western  Stage  Co.,  12-47;   Kings-  v.  Amos,  66  N.  W.,  774. 
bury  v.  Buchanan,  11-387;   Water-  "Davis     v.     Gambert,     57-239; 
house  v.  Black,  87-317;   Beroud  v.  Wetmore  v.  McMillan,  57-344. 
Lyons,  85-482;    Smith  v.  Eals,  81-  «  Witter  v.  Fisher,  27-9. 
235;  Harvey  v.  Pinkerton,  70  N.W., 
192. 


§§  899,   900.]  ACTIONS    OF   KEPLEVIN.  123 

tion  of  replevin,  the  plaintiff  will  be  entitled  to  a  judg- 
ment against  him  for  costs  if  he  would  have  been  entitled 
to  such  judgment  against  the  original  defendant.46 

§  899.  Of  the  proceedings. — The  action  is  tried  as  an 
ordinary  action,  but  there  can  be  no  joinder  of  any  cause 
of  action  not  of  the  same  kind,  nor  can  there  be  any  coun- 
ter claim.47  But  in  Sigler  v.  Hidy,  56  Iowa,  504,  it  was 
held  that  an  action  for  the  possession  of  a  note  on  the 
ground  that  it  had  been  paid,  could  properly  be  set  up  as 
a  counter  claim  to  an  action  on  the  note.  A  claim  for  the 
return  of  property  not  taken  under  the  writ  is  a  counter 
claim  and  not  allowable.48  The  defendant  is  not  pre- 
cluded from  setting  up  an  affirmative  defense  showing 
ownership  in  himself,  but  not  an  independent  claim 
against  the  plaintiff  based  on  the  transactions  in  which 
the  property  was  involved.49  And  see50 

§  900.  Of  the  petition. — The  petition  must  be  sworn 
to,  and  if  it  is  not,  the  writ  should  not  be  issued.51  But  an 
objection  that  it  is  not  verified  cannot  be  made  the  ground 
for  directing  the  jury  to  find  a  verdict  for  the  defendant, 
nor  can  it  be  taken  advantage  of  by  motion  in  arrest  of 
judgment.52  It  must  state: 

1.  A  particular  description  of  the  property  claimed, 
and  by  this  is  meant  a  description  so  definite  and  certain 
that  the  property  may  be  identified  therefrom.53    A  de- 
scription sufficiently  specific  to  pass  the  title  in  a  chattel 
mortgage  is  sufficient.54 

2.  The  actual  cash  value  of  the  property,  and  when 
there  are  several  articles,  the  actual  cash  value  of  each 
must  be  stated;  this  is  necessary  in  order  that  in  case  of 

46  Romick  v.  Perry,  61-238.  52  Turner  v.  Younker,  76-258. 

47  Code,  Sec.  4164;  Kuhn  v.  New-  ss  Code,  Sec.  4163,  Sub.l;  Stanch- 
man,  49-424;  Mclntire  v.  Eastman,  field    v.    Palmer,    4    G.    Gr.,    23; 
76-455.  Wright  v.  Ross,  2  G.  Gr.,  266;  Ells- 

48  Chapin  v.  Garretson,  85-377.  worth  v.  Henshaw,  4  G.  Gr.,  417; 

49  Palmer  v.  Palmer,  90-17.  Fort  Dodge  v.  Moore,  37-388;  Ste- 
60  Beroud  v.  Lyons,  85-482;  Muir      phens  v.  Williams,  46-540. 

v.  Miller,  82-700.  t>4  Fort  Dodge  v.  Moore,  37-388; 

5i  Cure  v.  Wilson,  25-205;  Duffey      Smith  v.  McLean,  24-322. 
v.  Dale,  42-215;  Hoover  v.  Rhoads, 
6-505. 


124  ACTIONS    OF   REPLEVIN.  [§900. 

a  partial  recovery  the  proper  judgment  can  be  entered 
for  the  property  recovered,  but  such  allegations  of  value 
do  not  limit  the  amount  of  defendant's  recovery,  in  case 
he  is  successful,  even  though  such  allegations  are  not  de- 
nied in  the  answer.55  As  to  what  may  be  shown  as  evi- 
dence of  value.56 

P3.  The  facts  constituting  the  plaintiff's  right  to  the 
resent  possession  of  the  goods  or  property  must  be 
stated,  and  the  extent  of  his  interest  therein,  whether  it 
be  a  full  or  qualified  ownership.57  If  he  is  the  absolute 
owner,  a  statement  of  that  fact  is  sufficient.58  If  he  claims 
a  special  property  in  the  goods  the  facts  upon  which  his 
right  of  possession  rests  must  be  pleaded.  When  owner- 
ship is  put  in  issue.59 

4.  It  must  also  be  stated  that  the  property  was  neither 
taken  on  the  order  or  judgment  of  a  court  against  him,  or 
against  the  property,  but  if  it  has  been  taken  by  either 
of  these  modes,  then  it  must  state  the  facts  constituting 
an  exemption  from  seizure  under  such  process.60  The 
facts  constituting  an  exemption  under  this  paragraph  are 
such  as  would  render  the  property  exempt  under  section 
4017  of  the  code.61  Property  in  the  custody  of  the  law, 
under  an  order  or  judgment  of,  or  writ  from,  any  court,  if 
the  process  under  which  it  is  held  is  legal,  can  not  be  re- 
plevied  unless  it  is  exempt  from  seizure.62  When  the 
property  is  claimed  as  exempt  from  seizure  under  the 
process,  the  facts  must  be  stated,  showing  such  exemp- 
tion; but  in  replevin  for  mechanic's  tools,  seized  under 
execution  and  claimed  as  exempt,  the  petition  need  not 
state  that  the  tools  are  those  with  which  the  plaintiff 
"habitually  earns  his  living."63  Under  th£  code  of  1851  it 
was  held  that  in  a  petition  in  an  action  to  recover  prop- 

ss  Code,  Sec.  4163,  Sub.  2;  Chica-  12-47;  Kingsbury  v.  Buchanan,  11- 

go  and  S.  W.  R.  Co.  v.  Northwest-  387. 
ern  U  P  Co    38-377  59  Mclntire  v.  Eastman,  76-455. 

WMlnkon     v.     Lewis,     78-620;          "  Code    Sec    4163,  Sub    4 
,,.,,  oo  C,AO  61  Armel  v.  Lendrum,  47-535. 

Miller  v.  James,  83-242.  62  Funck  v.  Israel,  5-438;   Miller 

57  Code,  Sec.  4163,  Sub.  3;   Har-  v.  Bryan,  3-58;  Smith  v.  Montgom- 

vey  v.  Pinkerton,  70  N.  W.,  192.  6ry,  5-370;  Cooley  v.  Davis,  34-128. 

ss  Cassel  v.  Western  Stage  Co.,         es  Perkins  v.  Wisner,  9-320. 


§  900.]  ACTIONS    OF   BEPLEVIN.  125 

erty  seized  under  execution,  on  the  ground  of  its  exemp- 
tion, that  it  wTas  not  necessary  to  allege  that  plaintiff  was 
a  resident  of  the  State.64  Property  cannot  be  taken  under 
a  writ  of  replevin  from  an  officer  holding  it  under  a  writ 
properly  issued  in  a  criminal  proceeding.65  If  the  process 
under  which  the  property  is  held  is  void,  replevin  may  be 
maintained.66 

5.  The  petition  must  also  allege  that  the  property  is 
wrongfully  detained;  the  gist  of  the  action  is  the  wrong- 
ful detention  of  the  property,  and  a  failure  to  allege  this 
fact  is  a  fatal  defect,  and  may  be  taken  advantage  of  on 
demurrer,  in  arrest  of  judgment  or  on  error.6'1 

6.  The  facts  constituting  the  alleged  cause  of  the  de- 
tention, according  to  the  best  belief  of  plaintiff,  must  also 
be  alleged.68 

7.  The  amount  of  damages,  if  any,  which  affiant  be- 
lieves the  plaintiff  ought  to  recover  for  the  detention  of 
the  property  must  be  stated.69 

8.  A  proper  prayer  for  judgment.70    The  petition  must 
be  signed  by  the  plaintiff  or  his  attorney,  and  verified; 
and  an  affidavit  signed  "G.  W.  &  B.  H.,"  and  sworn  to  by 
both  plaintiffs,  was  held  good.71    If  the  writ  is  to  issue  or 
be  served  on  Sunday,  the  petition  must  contain  the  addi- 
tional statement  that  the  plaintiff  believes  he  will  lose  his 
property  unless  process  issues  on  that  day.72    The  petition 
in  an  action  of  replevin  may  be  in  the  following  form: 

FORM  OF  PETITION   IN   REPLEVIN. 

Title,  ) 
Venue,  f 

The  plaintiff  for  a  cause  of  action  against  the  defendant  states: 
That  he  is  the  absolute  and  unqualified  owner  of  a  certain  red  cow, 
three  'years  old,  having  a  white  star  on  her  forehead,  and  being 
branded  with  the  letter  "S"  on  her  right  shoulder;  that  he  acquired 
said  ownership  by  purchase  (or  state  that  he  has  a  special  property 

64  Newell  v.  Hayden,  8-140.  69  Code,  Sec.  4163,  Sub.  6. 

65  Lemp  v.  Fullerton,  83-192.  TO  Williams  v.  Wilcox,  66-65. 

ee  Morgan  v.  Zenor,  88-175.  ?i  Cure  v.  Wilson,  25-205;  Duffey 

«T  Draper  v.  Ellis,  12-316;  Hough-  v.  Dale,  42-215;  Hoover  v.  Rhodes, 

taling  v.  Wells,  59-287,  and  cases  6-515;  see  Turner  v.  Younker,  76- 

cited.  258;  see  chapter  on  Verification. 

«»  Code,  Sec.  4163,  Sub.  5;  Nolan  12  Code,  Sec.  4165. 
v.  Jones,  53-387. 


126  ACTIONS    OP   REPLEVIN.  [§  901. 

in  the  cow,  viz.,  that  he  is  the  bailee  of  said  cow  for  a  term  of  three 

months  from  the day  of ,  18 — ,  she  having  been  put  in  the 

possession  and  charge  of  plaintiff,  to  keep  for  said  time,  he  to  have  the 
milk  from  said  cow  for  furnishing  her  food  and  care,  and  that  - 
is  the  general  owner,  or  as  the  case  may  be) ;  that  the  defendant  wrong- 
fully detains  possession  of  said  cow  from  the  plaintiff,  at county, 

Iowa;    that  said  cow  is  of  the  actual  cash  value  of  dollars; 

that  said  cow  was  neither  taken  on  the  order  or  judgment  of  a  court 
against  the  plaintiff,  nor  under  an  execution  or  attachment  against 
him,  or  against  the  property  (if  the  property  was  taken  on  such  process, 
it  must  be  so  stated,  and  the  facts  showing  the  exemption  alleged); 
that  the  alleged  cause  of  detention,  according  to  the  best  belief  of  the 
plaintiff,  is  (here  state  the  alleged  ground  of  detention,  viz.,  that  she 

is  held  by  the  defendant  as  sheriff  of  county,  Iowa,  by  virtue 

of  an  execution  in  his  hands,  issued  out  of  the  office  of  the  clerk  of  the 

district  court  of  county,  Iowa,  in  a  cause  wherein  was 

plaintiff,  and  was  defendant,  and  wherein  judgment  was  ren- 
dered against  said  defendant,  which  said  execution  was  by  said  sheriff 

levied  on  said  cow  as  the  property  of  said  ,  or  as  the  case  may 

be);  that  the  plaintiff  has  sustained  damages,  by  reason  of  the  said 
wrongful  detention,  in  the  sum  of  —  —  dollars,  no  part  of  which  has 
been  paid. 

Wherefore  plaintiff  asks  a  writ  of  replevin  for  said  property,  and 
demands  judgment  for  the  said  property  (or  for  the  possession  thereof, 
as  the  case  may  be),  or  for  the  value  thereof,  if  the  same  can  not  be 

found,  and  for  his  damages  and  costs. 

,  attorney  for  plaintiff. 

(Add  verification.) 

When  the  action  is  against  a  sheriff  or  constable  hold- 
ing the  property  by  virtue  of  an  execution  or  attachment, 
the  petition  must  allege  the  service  of  the  notice  required 
by  the  statute  on  the  officer  before  suit  was  commenced, 
and  in  such  a  case  the  following  should  be  inserted  in  the 
petition  before  the  prayer: 

FORM  OF  ADDITIONAL  ALLEGATIONS  IN  PETITION  OF  SERVICE 

OF  NOTICE. 

"And  plaintiff  further  avers  that  on  the day  of ,  18 — , 

(before  suit  was  commenced)  he  served  a  written  notice  on  said  de- 
fendant that  the  cow  described  in  this  petition  belonged  to  him,  and 
demanded  therein  that  said  defendant  release  her  and  turn  her  over  to 
this  plaintiff,  which  he  has  failed  and  refused  to  do;  a  copy  of  said 
notice  is  hereto  attached  marked  'A'  and  made  a  part  hereof." 

§  901.  Of  the  bond. — Before  a  writ  of  replevin  can 
issue  the  plaintiff  must  execute  a  bond  to  the  defendant 


§  901.]  ACTIONS    OF   REPLEVIN.  127 

with  sureties  to  be  approved  by  the  clerk  in  a  penalty  of 
at  least  equal  to  twice  the  value  of  the  property  sought  to 
be  replevied,  conditioned  that  he  will  appear  at  the  next 
term  of  the  court  and  prosecute  his  action  to  judgment, 
and  return  the  property,  if  a  return  be  awarded,  and  also 
pay  all  costs  and  damages  that  may  be  adjudged  against 
him.  This  bond  must  be  filed  with  the  clerk  of  the  court 
and  is  for  the  use  of  any  person  injured  by  the  proceeding, 
and  a  judgment  for  money  rendered  against  the  plain- 
tiff must  also  go  against  the  sureties  on  the  bond.1 
Said  bond  may  be  in  the  following  form: 

FORM  OF  REPLEVIN  BOND. 

Know  all  men  by  these  presents: 

That  we ,  of  the  county  of and  State  of  Iowa,  princi- 
pal, and  and ,  of  the  county  of and  State  of  Iowa, 

sureties,  are  held  and  firmly  bound  unto  ,  in  the  penal  sum  of 

dollars,  lawful  money  of  the  United  States,  well  and  truly  to 

be  paid  to  the  said ,  his  heirs,  executors  and  assigns.  The  con- 
dition of  this  obligation  is  such  that  whereas  the  said  did,  on 

the  -        -  day  of  -      — ,  18 — ,  file  his  petition  in  the  clerk's  office, 

in  the  district  court  of  the  State  of  Iowa,  in  and  for  county, 

claiming  of  the  said the  present  possession  of  (here  describe  the 

chattels  as  in  the  petition)  and  asking  the  issuance  of  a  writ  of  re- 
plevin therefor.  Now,  if  the  said  —  —  shall  appear  at  the  next  term 
of  said  court  and  prosecute  his  said  action  to  judgment,  and  return 
the  property,  if  a  return  be  awarded,  and  also  pay  all  costs  and  dam- 
ages that  may  be  adjudged  against  him  in  said  action,  then  this  obliga- 
tion to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Dated  the day  of ,  18—. 

,  principal. 

'  j-  sureties. 

(Add  justification.) 

The  sureties  in  the  bond  by  signing  it  covenant  and 
agree  that  a  judgment  for  money  against  the  principal 
shall  be  rendered  against  them  also.2  When  the  property 
levied  upon  under  execution  was  replevied  in  an  action 
by  the  execution  defendant,  who  was  the  general  owrner, 
and  sold  to  a  bona  fide  purchaser,  it  was  held  that  as  to 
such  purchaser  the  filing  of  the  replevin  bond  operated 

i  Code,  Sec.  4167-4176.  2  Hershler  v.  Reynolds,  22-152. 


128  ACTIONS   OF   REPLEVIN.  [§  902. 

to  release  the  property  from  the  lien  of  the  execution.3 
If  the  defendant  has  a  lien  upon  the  property  he  is  entitled 
in  an  action  on  the  bond  to  recover  the  value  of  his  in- 
terest at  the  time  the  property  was  taken.4  In  some  cases 
a  tender  or  offer  to  deliver  the  property  to  the  plaintiff 
may  relieve  the  surety  on  the  bond.5 

§  902.  Of  the  writ  of  replevin. — When  the  proper 
bond  is  filed  the  clerk  must  issue  an  order  or  writ  of  re- 
plevin directed  to  the  sheriff,  commanding  him  to  take  the 
property  therein  described  and  deliver  it  to  the  plaintiff. 
An  original  notice  must  be  served  on  the  defendant  as  re- 
quired by  statute.6 

The  writ  above  mentioned  may  be  in  the  following 
form: 

FORM  OF  WRIT  OF  REPLEVIN. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas,  ,  plaintiff,  on  the  day  of  ,  18 — ,  filed 

his  petition  in  the  clerk's  office  of  the  district  court  of  the  State  of 

Iowa,  in  and  for  »  county,  sworn  to  as  required  by  law,  against 

,   defendant,  claiming  of  him  the  following  described  personal 

property,  to  wit  (here  describe  property  as  in  plaintiff's  petition), 
which  the  said  plaintiff  alleges  is  wrongfully  detained  from  him  by 
the  said  defendant,  and  the  plaintiff  having  executed  a  bond  to  the 
defendant,  with  sureties  approved  by  me  as  required  by  law,  and  filed 
the  same  in  my  office,  you  are,  therefore,  hereby  commanded  to  take 
the  said  property  above  described  and  deliver  the  same  without  delay 
to  the  plaintiff,  and  of  this  writ  make  legal  service  and  due  return 
thereof  to  said  court  on  or  before  the  first  day  of  the  next  term  thereof, 

to  be  begun  and  holden  at  the  court  house  in ,  in  the  county  of 

,  Iowa,  on  the day  of ,  18 — . 

Witness  ,  clerk  of  the  district  court,  with  the  seal  of  said 

court  hereunto  affixed,  this day  of ,  18 — . 

[Seal.]  ,  clerk,  etc. 

When  the  petition  shows  that  the  property  has  been 
wrongfully  removed  into  another  county  from  the  one  in 
which  the  action  was  commenced,  the  writ  may  issue  from 
the  county  from  wrhence  the  property  was  wrongfully 
taken,  and  may  be  served  in  any  county  wrhere  the  prop- 

s  Gimble  v.  Ackley,  12-27.  s  Nimon  v.  Reed,  79-524. 

4  McMeekin  v.  Worcester,  68  N.          e  Code,  Sec.  4168. 
W.,  680. 


§  903.  J  ACTIONS    OF    REPLEVIN.  129 

erty  may  be  found,  in  the  same  manner,  and  with  like 
effect,  as  in  the  county  where  suit  is  brought.7  When  any 
of  the  property  is  removed  to  another  county  after  the 
commencement  of  the  action,  the  officer  to  whom  the  writ 
is  issued  may  follow  the  same  and  execute  the  writ  in  any 
county  of  the  State  where  the  property  is  found,  and  for 
the  purpose  of  following  the  property  duplicate  writs  may 
be  issued,  if  necessary,  and  served  as  the  original.8  When 
the  petition  alleges  that  the  property  has  been  wrongfully 
removed  out  of  the  county  before  the  commencement  of 
the  suit,  the  writ  must  set  out  this  allegation,  so  as  to 
show  on  its  face  the  authority  for  its  being  executed  in  a 
county  other  than  the  one  in  which  it  was  issued. 

§  903.  Of  service  of  the  writ. — When  the  writ  is 
placed  in  the  sheriff's  hands  he  should  execute  it  at  once 
by  taking  possession  of  the  property  described  therein,  if 
the  property  is  found  in  the  possession  of  the  defendant  or 
his  agent,  or  of  any  other  person  who  obtained  possession 
thereof  from  the  defendant,  directly  or  indirectly,  after 
the  order  was  placed  in  the  sheriff's  hands;  and  for  such 
purpose  he  may  break  open  any  dwelling  house,  or  other 
inclosure,  having  first  demanded  entrance  and  exhibited 
his  writ  if  demanded.9  When  the  sheriff  has  obtained 
possession  of  the  property,  or  any  of  it,  he  must  forthwith 
deliver  it  to  the  plaintiff,  unless  a  bond  is  given  as  here- 
after stated,  and  if  instead  of  taking  actual  possession  of 
the  property  the  sheriff  leaves  it  with  the  defendant,  tak- 
ing his  receipt  therefor,  the  plaintiff  acquires  no  posses- 
sion of  the  property,  and  may  take  a  money  judgment  in 
case  he  recovers.10  If  it  appears  by  affidavit  that  the 
property  claimed  has  been  disposed  of  or  concealed,  so 
that  the  writ  can  not  be  executed,  the  court  or  judge, 
upon  verified  petition,  may  compel  the  attendance  of  the 
defendant,  or  other  person  claiming  or  concealing  the 
property,  and  examine  him  on  oath  as  to  the  situation  of 

7  Code,  Sec.  4168.  10  Code,  Sec.  4172;  Davis  v.  Bay- 

s  Code,  Sec.  4169.  liss,  51-438. 

»  Code,  Sec.  4170;  Smith  v.  Eals, 
81-235. 

Vol.  IT-3 


130  ACTIONS    OF   REPLEVIN.  [§  904. 

the  property,  and  punish  a  willful  obstruction,  hindrance 
or  disobedience  of  the  order  of  the  court  as  in  case  of  con- 
tempt11 

The  judge  in  vacation  may  punish  a  willful  disobedi- 
ence or  hindrance  of  the  execution  of  the  writ,  as  well 
as  any  disobedience  of  any  order  made  necessary  by  the 
proceedings  to  examine  the  defendant  under  oath.12  The 
affidavit  should  state  the  facts  showing  the  property  has 
been  disposed  of,  or  concealed,  and  the  defendant  may  be 
brought  before  the  court  as  in  cases  of  proceedings  auxil- 
iary to  execution.13  The  facts  must  be  stated  in  writing; 
oral  evidence  is  not  proper.14  The  affidavit  may  be  in  the 
following  form: 

FORM  OF  AFFIDAVIT  OF  CONCEALMENT. 
State  of  Iowa, 


County,  f88' 


being  duly  sworn,  say:     That  on  the    day    of 


18 — ,  I  commenced  an  action  in  the  district  court  of 


county,  Iowa,  against to  recover  the  possession  of-  the  following 

described  personal  property,  to  wit  (here  describe  the  property  as  in 

the  petition).    That  the  said has  concealed  (or  disposed  of)  the 

property  claimed  (or  some  portion  of  it,  as  the  case  may  be),  so  that 
the  order  of  replevin  in  (or  order  of  the  court  issued  in  said  action, 
as  the  case  may  be)  can  not  be  executed  (here  state  the  facts  showing 
the  disposition  of  or  concealment  of  the  property).  He  therefore  asks 

that  sa'id  may  be  brought  before  this  court   (or  judge)   to  be 

dealt  with  according  to  law. 

(Add  certificate  of  officer.)  . 

The  above  affidavit  must  be  made  by  some  person  know- 
ing the  facts,  and  the  statement  in  the  affidavit  of  the 
facts,  or  of  the  circumstances  tending  to  establish  them, 
should  be  as  full  and  accurate  as  the  nature  of  the  case 
permits.  Where  no  order  of  replevin  is  asked,  but  the 
examination  of  the  defendant  is  desired  after  a  final  judg- 
ment, the  affidavit  must  be  changed  accordingly. 

§  904.  Of  the  delivery  bond. — At  any  time  before 
the  actual  delivery  of  the  property  to  the  plaintiff,  the 

11  Code,  Sec.  4171.  13  Code,  Chapter  4,  Title  19. 

12  Code,  Sec.  4171;  State  v.  Mey-         i*  Code,  Sec.  4466;  State  v.  Mey- 
ers, 44-580.  ers,  44-580. 


§  904.  ]  ACTIONS    OF   REPLEVIN.  131 

defendant  may  stay  all  proceedings  under  the  writ  of 
replevin,  and  retain  the  property  in  his  own  possession 
by  executing  a  bond  to  the  plaintiff,  with  sureties  to  be 
approved  by  the  clerk,  or  sheriff,  conditioned  that  he  will 
appear  in  and  defend  the  action,  and  deliver  the  property 
to  the  plaintiff,  if  he  recover  judgment  therefor,  in  as 
good  condition  as  it  was  when  the  action  was  commenced, 
and  that  he  will  also  pay  all  costs  and  damages  that 
may  be  adjudged  against  him,  for  the  taking  or  detention 
of  the  property,  which  bond  must  be  delivered  to  the 
officer  who  must  return  the  property  to  the  defendant, 
and  the  officer  must  return  the  bond  with  the  writ  to  the 
clerk  making  reference  to  such  bond  in  his  return.15  If 
the  defendant  gives  a  delivery  bond  for  the  property,  and 
it  perishes  in  his  hands,  plaintiff's  measure  of  damages 
is  the  same  as  if  the  property  had  been  preserved  to  abide 
the  result  of  the  action.16 

The  bond  may  be  in  the  following  form: 

FORM  OF  DELIVERY  BOND  IN  REPLEVIN. 

Know  all  men  by  these  presents: 

That  we ,  principal,  and and ,  sureties,  are  held 

and  firmly  bound  unto ,  his  executors  and  assigns,  in  the  penal 

sum  of  (the  sum  must  be  fixed  by  the  clerk  or  sheriff  accepting  the 
bond  in  sufficient  amount  to  cover  the  value  of  the  property  claimed, 
and  all  damages  and  costs)  well  and  truly  to  be  paid.  The  condition 
of  this  obligation  is  such:  That  whereas  in  an  action  in  the  district 

court  of  -        -  county,  Iowa,  wherein  is  plaintiff  and  

is  defendant,  a  writ  of  replevin  has  been  issued,  directing  the  sheriff 
of  said  county  to  take  the  personal  property  therein  described,  and 
deliver  the  same  to  said  plaintiff.  Now,  if  the  said  shall  ap- 
pear and  defend  the  said  action,  and  deliver  the  said  property  to  the 
plaintiff,  if  he  recover  judgment  therefor,  In  as  good  condition  as  it 
was  when  said  action  was  commenced,  and  will  also  pay  all  costs  and 
damages  that  may  be  adjudged  against  him,  for  the  taking  (or  the 
detention,  as  the  case  may  be)  of  said  property,  then  this  obligation 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Dated  the day  of ,  18 — . 

,  principal. 

(Add  justification.) 

16  Code.  Sec.  4172.  le  Hinkson  v.  Morrison,  47-167- 

Lillie  v.  McMillan,  52-463. 


132  ACTIONS   OF   KEPLEVIN.  [§    904. 

The  bond  must  be  approved  by  the  officer  accepting  it, 
as  follows: 

FORM  OF  APPROVAL  OF  ABOVE  BOND. 

I  hereby  approve  the  within  bond  and  the  sureties  therein,  this 

day  of  ,  18— 

,  clerk  (or  sheriff). 

If  the  bond  is  executed  in  the  presence  of  the  clerk 
or  sheriff,  the  approval  should  be  in  the  following  form: 

FORM  OF  APPROVAL  OF  ABOVE  BOND. 

Executed  in  my  presence,  and  I  hereby  approve  the  within  bond 

and  sureties  therein,  this day  of ,  18 — . 

,  clerk   (or  sheriff). 

And  in  using  either  form  the  approval  must  be  indorsed 
on  the  bond.  The  officer  accepting  and  approving  the 
bond  must  require  the  sureties  to  justify  as  to  their  quali- 
fications to  become  bondsmen.  When  the  property  is  so 
retained  by  the  defendant,  he  must  permit  the  sheriff  and 
plaintiff  to  inspect  the  same,  and  if  the  plaintiff  requests 
it,  the  sheriff  must  cause  the  property  to  be  examined 
and  appraised  by  two  sworn  appraisers,  chosen  by  the 
parties  to  the  action,  and  in  case  they  cannot  agree  he 
must  select  a  third,  and  an  appraisement  agreed  to  by 
two  of  them  will  be  sufficient,  and  he  must  return  their 
appraisement  with  the  execution.17 

The  following  forms  may  be  used : 

FORM  OF  NOTICE  TO  CHOOSE  APPRAISERS. 

To (or  to ,  his  agent  or  attorney): 

You  are  hereby  notified  that  by  virtue  of  an  order  of  replevin  to  me 
directed,  issued  out  of  the  office  of  the  clerk  of  the  district  court  of 

county,  Iowa,  in  an  action  therein  pending,  wherein  -        -  is 

plaintiff  and  is  defendant,  and  commanding  me   to  take   pos- 
session of  (here  describe  the  property  as  in  the  petition),  I  have  taken 
possession  of  said  property;  and  whereas,  the  said  —     — ,  defendant  in 
said  action,  has  given   a  delivery  bond,  and  said  property  has   been 

turned  over  to  him,  and  whereas,  said ,  plaintiff  in  said  action, 

has  requested  me  to  have  said  property  appraised,  you  are  therefore 
required  to  choose  an  appraiser  on  your  behalf  (or  on  behalf  of  said 
defendant),  to  value  said  property  according  to  law. 

Dated  the day  of  -     — ,  18—. 

,  sheriff,  etc. 

IT  Code,  Sec.  4173. 


§  905.]  ACTIONS    OF    REPLEVIN.  133 

FORM  OF  APPRAISEMENT. 

State  of  Iowa,  )  _ 

County,  f 

• 

We,  the  undersigned  appraisers,  selected  to  value  the  property  here- 
inafter described,  which  was  taken  by ,  sheriff  of  county, 

Iowa,  by  virtue  of  an  order  of  replevin  issued  out  of  the  clerk's  office 
of  the  district  court  in  favor  of ,  against  certain  personal  prop- 
erty below  described,  in  the  possession  (or  under  the  control  of) 

— ,  defendant  in  said  action,  do  hereby  report  that  we  have  valued 
said  property  according  to  its  fair  value  at  this  time,  and  that  the 
schedule  hereto  annexed  contains  a  correct  inventory  of  said  property, 
and  that  the  values  therein  affixed  to  each  article  respectively  are  the 
fair  values  thereof,  viz.:  schedule  of  property  appraised  (here  give  a 
description  of  each  article  of  personal  property  with  the  value  set 
opposite  thereof). 

Signed  this day  of ,  18—. 

'  t  appraisers. 

The  appraisement  must  be  sworn  to  as  follows: 

FORM  OF  OATH  TO  APPRAISEMENT. 

State  of  Iowa,  ) 
County,  f  s 

We  (names  of  appraisers)  being  duly  sworn,  depose  and  say  that 
the  foregoing  is  a  just  and  true  appraisement  of  the  property  in  the 
above  schedule  described  at  this  time,  ao  we  believe. 

'  [•  appraisers. 
(Add  certificate  of  officer.) 

§  905.  Of  the  sheriff's  return.— The  sheriff  must  re- 
turn the  writ  of  replevin  on  or  before  the  first  day  of  the 
trial  term  of  court,  with  a  statement  of  his  doings  under 
it,  which  should  be  indorsed  on  the  back  of  the  writ,  or, 
if  on  a  separate  paper,  should  be  attached  thereto,  and 
this  return  must  particularly  describe  any  property  taken 
under  the  order.18  The  taking  of  a  receipt  of  the  defend- 
ant for  the  property  is  not  authorized  by  statute  and  does 
not  constitute  a  levy;  actual  possession  of  the  property 
must  be  taken.19 

The  form  of  return  may  be  as  follows: 

is  Code,  Sees.  4172,  4174.  is  Davis  v.  Bayliss,  51-438. 


134  ACTIONS    OF   BEPLEVIN.  £§  906. 

FORM  OF  RETURN  OF  WRIT  OF  REPLEVIN. 
State  of  Iowa, 


1       I     BQ 

v  SS. 


County 

I, ,  sheriff  of  said  county,  hereby  certify  and  return:     That 

the  within  writ  of  replevin  came  into  my  hands  for  service,  on  the 

day  of ,  18 — .    That  on  the  same  day  (or  if  on  another  day, 

state  the  fact)  by  virtue  thereof  I  took  the  following  described  personal 
property  found  in  the  possession  of  the  defendant  at  said  county,  to 
wit  (here  give  a  particular  description  of  the  property  taken).  And  I 
forthwith  delivered  the  same  to  the  plaintiff  herein,  (or  if  a  delivery 
bond  is  taken,  the  return  should  recite  that  fact,  the  approval  of  the 
bond  and  the  return  of  the  property  to  the  possession  of  the  defendant). 
And  I  now  return  this  writ  executed. 

Dated  this day  of ,  18 — . 

,  sheriff,  etc. 

Fees,  | . 

The  writ  and  bond,  if  one  is  taken,  must  be  returned 
to  the  clerk  and  by  him  filed  and  preserved. 

§  906.  Of  pleading,  practice,  evidence,  etc. — The 
defendant  may  plead  and  prove  any  defense,  legal  or 
equitable,  which  goes  to  defeat  the  plaintiff's  right  of  re- 
covery, but  defenses  not  raised  by  the  pleadings  are  not 
available  on  appeal.20  The  question  is,  in  whom  was  the 
right  of  possession  at  the  time  the  suit  was  instituted. 
Plaintiff  having  alleged  it  to  be  in  him,  it  is  not  necessary 
for  defendant  to  plead  property  in  himself,  or  that  he  is 
entitled  to  the  possession.21  And  generally  it  may  be 
said  that  whatever  tends  to  disprove  plaintiff's  right  to 
recover,  may  be  given  in  evidence  under  a  denial  of  that 
right;  but  if  it  is  sought  to  attack  plaintiff's  right  of  pos- 
session for  fraud,  it  must  be  specially  pleaded.22  If  pos- 
session only  is  claimed,  plaintiff  may  maintain  the  action 
by  proving  general  ownership,  or  special  property  in  the 
goods.23  In  an  action  of  replevin  against  an  officer  who 
has  levied  on  property  under  an  execution  against  a  third 

20  Code,  Sec.  3566;  Jansen  v.  Ef-  23  Cassel  v.  Western  Stage  Co., 

fey,  10-227;  Palmer  v.  Palmer,  90-  12-47;    Corbitt   v.   Heisey,   15-296; 

17;  Chapin  v.  Garretson,  85-377.  Jansen  v.  Effey,  10-227;  Water- 
si  Hunt  v.  Burnett,  4  G.  Gr.,  512;  house  v.  Black,  87-317;  Smith  v. 

Campbell  v.  Williams,  39-646.  Eals,  81-235;  Hibbard  v.  Zenor,  82- 

22  Gray  v.  Earl,  13-188;  Jansen  v.  505;  Harvey  v.  Pinkerton,  70  N. 

Effey,  10-227;  Parsons  v.  Hedges,  W.,  192. 

15-119. 


§  906.]  ACTIONS    OF   REPLEVIN.  135 

person,  the  defendant  may  plead  that  since  the  com- 
mencement of  the  action  a  landlord's  lien  has  been  estab- 
lished against  it  and  the  property  taken  from  him  to  sat- 
isfy such  lien,  and  this  though  plaintiff  was  not  a  party 
to  the  landlord's  attachment.24  A  farmer  engaged  in 
raising,  handling  and  selling  horses  and  acquainted  with 
their  value,  may  testify  as  to  the  value  of  a  race  horse.25 
When  the  defendant  relies  on  legal  process  to  justify  him 
in  taking  the  property,  he  must  plead  the  writ  or  process 
under  which  he  acted.26 

An  officer  in  defending  an  action  in  replevin  may  jus- 
tify under  writs  still  in  his  hands,  and  not  yet  returned, 
and  such  defense  will  not  be  affected  by  a  failure  to  re- 
cover judgment  in  the  action  in  which  such  writs  is- 
sued.27 When  the  order  of  replevin  is  quashed  for  defects 
in  the  affidavit  or  order,  it  does  not  affect  the  action,  but 
only  abates  the  order,  and  when  defendant  has  demurred 
or  answered,  he  can  not  afterward  move  to  quash  the 
order.28  For  instructions  in  case  of  replevin,  reference 
is  made  to  the  case  of  McCoy  v.  Cadle,  4  Iowa,  557.  In 
an  action  of  replevin  for  property  seized  by  virtue  of  a  writ 
of  attachment,  but  claimed  to  be  exempt  from  such  seiz- 
ure, the  objection  can  not  be  made  that  it  takes  issue 
upon  the  facts  stated  as  grounds  for  an  attachment.29 
The  residence  of  plaintiff,  when  material,  may  be  proved 
without  being  pleaded,  but  if  plaintiff  is  a  non-resident 
of  the  State,  and  hence  not  entitled  to  the  property  in 
question  as  exempt,  such  defense  should  be  specially 
pleaded.30  If  the  petition  alleges  the  right  of  possession 
as  in  plaintiff,  an  answer  which  does  not  specifically  deny 
that  fact,  but  states  facts  sufficient  to  defeat  plaintiff's 
recovery,  is  good.31  When  the  action  is  against  a  sheriff 
or  constable,  and  the  want  of  service  of  notice  of  owner- 
si  Neeb  v.  McMillan,  68  N.  W.,  27  Kingsbury  v.  Buchanan,  11- 
438.  387. 

25  Leek  v.  Chesley,  67  N.  W.,  580.         28  Beard  v.  Smith,  9-50. 

26  Kingsbury   v.    Buchanan,    11-         29  Mumma  v.  McKee,  10-107. 
387;  Gray  v.  Earl,  13-188;  Parsons         ao  Newell  v.  Hay  den,  8-140. 

v.  Hedges,  15-119.  ai  Skinner  v.  C.,  R.  I.  &  P.  R. 

Co.,  12-191. 


136  ACTIONS    OF    BEPLEVIX.  [§  ^'06 

ship  is  not  pleaded,  and  defendant  proceeds  to  trial  on 
the  question  of  ownership  of  the  property,  plaintiff  will, 
on  proper  proof,  receive  the  property,  but  may  be  ad- 
judged to  pay  the  costs.32  A  surety  in  a  replevin  bond 
can  not,  in  an  action  of  replevin  instituted  by  his  princi- 
pal before  a  justice  of  the  peace,  prosecute  an  appeal  in 
his  own  name,  and  have  the  issue  between  his  principal 
and  the  defendant  retried  in  the  district  court.33  Quash- 
ing the  writ  will  not  cause  the  suit  to  abate,  and  in  a 
proceeding  to  quash  the  writ  on  the  ground  of  fraud  in 
procuring  jurisdiction  of  the  property,  such  process 
should  not  be  set  aside,  unless  the  evidence  is  clear  and 
satisfactory.34  It  is  held  to  be  error  to  render  judgment 
against  plaintiff  for  a  mere  failure  to  produce  the  writ 
after  it  has  served  its  purpose,  and  the  property  has  been 
seized  under  it.35  Demand  of  possession  before  commenc- 
ing the  action  need  only  be  made  when  it  is  necessary  to 
terminate  the  right  of  possession  in  defendant  and  confer 
it  on  plaintiff;  that  is,  where  the  possession  of  defendant 
was  in  its  inception  rightful,  a  demand  must  be  made.36 
But  where  both  parties  claim  title  to  the  property  and 
the  right  of  possession  incident  thereto,  no  demand  need 
be  made.37  Nor  need  it  be  where  the  original  taking  is 
wrongful  or  illegal.38  If  property  is  sold  on  trial  and 
notes  are  given  for  the  purchase  money,  no  part  of  which 
has  been  paid,  in  an  action  of  replevin  to  recover  the  prop- 
erty a  demand  is  not  necessary.39  Where  the  judgment  in 
a  replevin  suit  simply  determines  the  right  of  possession, 
the  title  may  afterward  be  determined  in  an  action  on  the 
bond.40  Where  one  sought  to  recover  possession  of  prop- 
erty held  by  a  sheriff,  but  failed  to  allege  service  of  notice 

32  Warder  v.  Hoover,  51-491.  ST  Smith  v.  McLean,  24-322;  Leek 

33  Crites  v.  Littleton,  23-205.  v.  Chesley,  67  N.  W.,  580.      . 

s*  Minott  v.  Vineyard,  11-90;  ss  Stanchfield  v.  Palmer,  4  G.  Gr., 
Goodon  v.  Bucknell,  38-438,  and  23;  Robinson  v.  Keith,  25-321;  De- 
cases  cited.  lancey  v.  Holcomb,  26-94. 

35  Saubman    v.    Greatrakes,    34-  39  peck  v.  Bonebright,  75-98. 

598;  see  Beard  v.  Smith,  9-50.  «  Harmon  v.  Goodrich,  1  G.  Gr., 

se  Gilchrist  v.  Moore,  7-9;  Smith  13;  Buck  v.  Rhodes,  11-348;  Haw- 

v.  McLean,  24-322;  Ruiter  v.  Plate,  ley    v.    Warner,    12-42;     Hall    v. 

77-17;   Leek  v.  Chesley,  67  N.  W.,  Smith,  10-45. 
580. 


§  007.]  ACTIONS    OF    KEPLEVIN.  137 

of  ownership,  and  upon  demurrer  being  interposed  upon 
that  ground,  the  court  allowed  him  to  dismiss  his  action 
on  payment  of  costs,  and  on  payment  to  the  sheriff  of  the 
amount  of  the  judgment  for  which  the  property  was 
seized,  to  retain  possession  of  it,  it  was  held  not  to  be 
error.41 

In  an  action  of  replevin,  when  the  defendant  retains 
the  property  it  is  not  necessary,  in  order  to  recover  a 
judgment  for  the  value  of  the  property,  for  the  plaintiff 
to  show  the  value  of  each  article;  it  is  sufficient  in  such 
a  case  to  show  the  aggregate  value  of  the  property  wrong- 
fully detained.42  A  failure  to  prove  that  the  property 
sought  to  be  replevied  is  detained  in  the  county  where 
suit  is  brought,  will  not  defeat  the  action  when  suit  is 
brought  in  the  county  where  the  defendant  resides.43 

§  907.  Of  the  verdict. — When  by  the  verdict  there 
will  be  a  judgment  for  the  recovery  or  the  return  of  the 
property,  the  jury  must  assess  the  value  of  the  property, 
and  also  damages,  for  the  taking  or  detention,  and,  when 
required  to  do  so  by  either  party,  they  must  fix  the  value 
of  each  article  of  property  and  find  which  is  entitled  to 
possession,  designating  his  right  therein  and  the  value  of 
such  right.44  And  if  they  fail  to  do  so  when  re- 
quired, they  may  be  sent  back  to  amend  their  verdict.45 
But  when  the  ownership  and  right  of  possession  of  the 
property  is  in  question,  being  put  in  issue  on  the  allega- 
tions of  plaintiff's  petition,  the  defendant  setting  up  no 
special  property  in  himself,  a  verdict  for  plaintiff,  which 
assessed  the  value  of  the  property  and  the  damages  for 
wrongful  detention  only,  was  held  sufficient  in  form.46 
And  where  property  taken  in  execution  was  taken  from 
the  sheriff  by  replevin  and  the  plaintiff  in  said  action 
failed  to  prosecute  the  same  successfully,  the  measure 
of  the  defendant's  damages  is  the  balance  due  him  as 

41  Reisner  v.  Currier,  58-213.  Reel.  75-304;   Peck  v.   Bonebright, 

42  Goldsmith  v.  Willson,  67-662.          75-98. 

43  Same  as  No.  42.  45  Reed  v.  Thayer,  9  Ind.,  157. 

4*  Code,  Sec.  4175;  see  Van  Horn         46  Cassel  v.  Western  Stage  Co., 
v.   Overman,  75-421:    Neeb  v.  Me-      12-47. 
Millan,  68  N.  W.,  438;  Coleman  v. 


138  ACTIOXS    OF   REPLEVIN.  [§  908. 

execution  plaintiff,  with  interest  and  costs.47  So,  where 
the  petition  alleged  the  value  of  the  property,  and  that 
plaintiff  was  the  absolute  owner  and  the  possession  was 
taken  under  the  writ  from  defendant  and  delivered  to 
plaintiff,  a  verdict  in  the  words  "we,  the  jury,  find  for  the 
plaintiff,"  was  held  good.48  But  where  an  action  of  re- 
plevin was  tried  to  the  court  and  judgment  found  for 
plaintiff,  it  was  held  the  defendant  could  not  have  been 
prejudiced  by  the  failure  of  the  court  to  assess  the  value 
of  each  article  of  property.49 

§  908.  Of  the  judgment,  etc. — Certain  requisites  of 
the  judgment  herein  treated  of  apply  to  the  verdict.  The 
judgment  must  determine  which  party  is  entitled  to  the 
possession  of  the  property,  and  must  designate  his  rights 
therein,  as  absolute  owner  or  otherwise,  and  if  the  party 
in  whose  favor  judgment  is  given  has  not  the  possession 
of  the  property,  the  judgment  must  also  determine  the 
value  of  his  right  therein,  which  right  is  absolute  as  to 
an  adverse  party  having  no  right  in  said  property,  and 
the  judgment  must  also  include  such  amount  as  damages 
as  the  party  may  be  entitled  to  for  the  illegal  detention 
of  the  property.  If  judgment  be  against  the  plaintiff  for 
the  money  value  of  the  property,  it  shall  also  be  against 
the  sureties  on  the  bond.50  In  an  action  of  replevin  the 
court  can  not  render  judgment  in  favor  of  defendant  for 
the  value  of  goods  included  in  plaintiff's  claim  which 
were  not  taken  under  the  writ.  In  such  action  a  judg- 
ment in  favor  of  several  defendants  jointly  for  the  value 
of  the  goods  was  erroneous  where  one  of  them  claimed 
no  interest  therein.  And  a  judgment  for  the  value  of  the 
goods  in  favor  of  a  defendant  who  claimed  them  under 
a  mortgage  but  introduced  no  evidence  to  show  any  in- 
terest in  the  property  was  erroneous.51  And  whenj)_laint- 
iff.4isniisses  his  action  before  an  answer  is  filed,  the  de- 
fendant is  entitled  to  have  judgment  for  his  interest  in 
the  property  replevied,  but  if  he  files  answer,  notwith- 

«  Hayden  v.  Anderson,  17-158.  oo  Code,  Sec.  4176. 

«  Newlin  v.  Reed,  30-496.  si  Jandt  v.  Potthast,  71  N    W 

49  Williams  v.  Wilcox,  66-65.  216. 


§   908.]  ACTIONS    OF   EEPLEVIN.  139 

standing  the  dismissal,  claiming  other  and  further  relief, 
plaintiff  should  be  allowed  to  plead  thereto  and  introduce 
evidence  upon  such  issue.52     In  rendering  the  judgment 
on  a  verdict  in  favor  of  the  defendant,  interest  may  be 
allowed  him  on  the  value  of  the  property  from  the  time 
it  was  wrongfully  taken.53     The  defendant  in  replevin 
may,  after  the  action  has  been  dismissed  by  plaintiff, 
have  an  alternative  judgment  for  the  return  of  the  prop- 
erty, or  the  amount  of  his  damages  against  both  principal 
and  sureties  on  the  bond.54    Generally  the  judgment  in 
replevin,  when   plaintiff   fails   to    maintain   his   action, 
should  be  for  a  return^of  the  property.55    The  entire  legal 
rights  of  the  parties  to  the  suit  in  the  property  in  contro- 
versy should  be  adjudicated  in  the  main  action,  and  such 
adjudication  is  conclusive  and  final.56     And  in  such  ac- 
tion, when  it  is  adjudicated  that  the  property  replevied 
was  subject  to  a  judgment,  which  plaintiff  was  compelled 
to  pay,  his  remedy  is  not  by  an  action  for  a  wrongful  con- 
version against  the  sheriff  who  levied  on  the  property 
under  the  judgment.57     The  defendant  can  only  recover 
the  value  of  his  right  in  the  property,  and  it  can  not  ex- 
ceed the  amount  of  the  claim  for  which  he  held  the  prop- 
erty when  taken  from  him.58    If  a  party  holds  the  prop- 
erty for  a  lien  thereon  he  is  entitled  in  an  action  for  a 
recovery  of  the  property  by  the  owner  to  a  judgment  for 
its  possession,  and  in  default  thereof  a  money  judgment 
for  the  amount  of  his  lien.59     When  the  property  for 
which  a  bond  has  been  given  by  defendant  is  not  forth- 
coming to  answer  the  judgment,  and  a  party  entitled 
thereto  elects  to  take  a  money  judgment  for  the  value 
thereof,  such  a  judgment  may  be  entered  against  the 
principal  and  sureties  on  the  bond.60     A  money  judg- 
ment, taken  as  heretofore  stated,  and  in  lieu  of  property 

52  Crist  v.   Francis,   50-257;    see      sen    v.    Bffey,    10-227;    Mason    v. 
Funk  v.   Israel,  5-438;    Jansen  v.      Richards,  12-73. 

Effey,  10-227;  Marshall  v.  Bunker,         B«  Hayden  v.  Anderson,  17-158. 
40-121.  67  Finch  v.  Hollinger,  46-216. 

53  Heard  v.  Gallagher,  14-394.  58  McNorton    v.    Akers,    24-369; 
»*Wilkens    v.    Treynor,    14-391;  Morris  v.  Burley,  74-45. 

Clark  v.  Warner,  32-219.  sa  Kundson  v.  Geison,  38-234. 

55  Chadwick  v.  Miller,  6-38;  Jan-         «o  Code,  Sec.  4179. 


140  ACTIONS    OF    REPLEVIN.  [§    908. 

exempt  from  execution,  will  also  be  to  the  same  extent 
exempt  from  execution  and  from  all  set-off  or  diminution, 
either  by  the  adverse  party  or  by  any  other  person,  and 
such  exemption  may,  at  the  option  of  the  party  entitled 
thereto,  be  stated  in  the  judgment.61  Where  the  defend- 
ant who  is  not  the  general  owner  of  the  property,  recovers 
judgment  for  the  possession  based  on  the  special  prop- 
erty therein,  the  judgment  should  not  be  for  the  value  of 
the  property,  but  only  for  the  value  of  his  interest  there- 
in; and  in  an  action  on  the  bond,  or  on  the  assessment 
of  damages  in  the  principal  action,  where  plaintiff  has 
failed  to  prosecute  his  suit,  and  a  return  of  the  property 
is  ordered,  plaintiff  in  the  replevin  suit  may  show  that 
the  other  party  is  not  the  owner  of  the  property,  for  the 
purpose  of  determining  the  measure  of  damages.62  Where 
grain  was  taken  on  a  writ  of  replevin,  and  threshed  and 
sold,  by  the  plaintiff,  and  on  the  trial  the  ownership  was 
found  to  be  in  the  defendant,  the  measure  of  his  recovery 
on  plaintiff's  bond  was  held  to  be  the  market  value  of 
grain  at  the  time  of  trial,  less  the  cost  of  threshing  and 
marketing,  it  not  appearing  that  plaintiff  had  acted  in 
bad  faith  in  obtaining  the  writ,63  The  bona  fide  pur- 
chaser of  property  (after  the  replevin  bond  is  given)  held 
under  execution,  takes  the  property  discharged  of  the 
lien;64  whether  the  successful  party  must  elect  at  the 
time  judgment  is  entered  as  to  whether  he  will  take  the 
property  or  its  value,  or  may  do  so  when  execution  issues, 
seems  to  be  in  doubt;  but  where  judgment  was  entered 
that  plaintiff  have  immediate  possession  of  the  property, 
and  in  default  thereof  recover  its  value,  it  was  held  that 
the  judgment  amounted  to  an  election  to  take  the  prop- 
erty, and  it  should  have  been  accepted  when  tendered 
and  the  judgment  satisfied.65  Where  plaintiff  neglected 
to  ask  for  a  judgment  for  possession  of  the  property,  but 

si  Code,    Sec.    4181;    Harrier  v.         es  Clement  v.  Duffy,  54-632." — ' 
Fassett,  56-264.  «*  Gimble  v.  Ackley,  12-27. 

62  Havely  v.  Warner,  12-42;  Buck         «s  Oskaloosa  S.  E.  Works  v.  Nel- 

v.  Rhoads,  11-348;  Hayden  v.  An-  son,  54-519;  see  Williams  v.  Chap- 

derson,    17-158;     see    Ormsby    v.  man,  60-57. 
Nolan,  69-130. 


8    908.1  ACTIONS    OF    EEPLEVIX. 

O  J 

asked  for  a  money  judgment  for  its  value,  and  the  prop- 
erty was  in  plaintiff's  possession,  under  the  order  of  re- 
plevin, and  the  court  upon  the  merits  rendered  judgment 
that  plaintiff  have  and  recover  possession,  and  no  objec- 
tion was  raised  in  the  petition  or  judgment,  such  objec- 
tion can  not  be  raised  in  the  supreme  court.66     Where 
mortgaged   chattels   were  levied    on   under    execution 
against  the  mortgagor,    and    the    mortgagee   replevied 
them,  and  judgment  was  rendered  for  the  defendant  (the 
officer  who  made  the  levy),  the  plaintiff  can  not  complain 
that  the  judgment  should  have  been  for  the  return  of 
the  property,  or  in  default  thereof  for  the  amount  due 
on  the  execution,  so  long  as  he  can  discharge  the  same 
by  a  return  of  the  property.67    If  the  plaintiff  in  an  action 
against  an  officer  has  obtained  possession  of  property 
levied  on,  and  dismisses  his  action  before  issue  is  joined, 
and  the  property  is  allowed  to  remain  in  the  plaintiff's 
hands,  a  mortgage  executed  by  him  on  it,  during  said 
time,  will  be  superior  to  the  claim  of  the  officer  under  a 
writ  of  restitution,  or  a  subsequent  levy,  the  plaintiff  be- 
ing in  fact  the  real  owner.68     The  statute  provides  two 
distinct  remedies;   first,  the  delivery  of  the  property  to 
the  plaintiff;  and,  second,  when  it  can  not  be  delivered, 
the  rendition  of  a  judgment  in  his  favor  for  its  value.69 
Where  the  jury  found  generally  for  the  defendant  for  a 
certain  sum,  but  did  not  award  him  the  possession  of  the 
property,  it  will  not  be  presumed  that  he  was  found  en- 
titled to  its  possession.70    If,  after  the  property  is  seized, 
it  is  determined  in  some  other  forum  that  plaintiff  is  not 
the  owner  of  it,  the  defendant  is  not  entitled  to  judgment 
by  default  for  its  value,  and  the  plaintiff  may  introduce 
evidence  as  to  such  value.71     When  the  judgment  was 
for  a  return  of  the  property  and  in  default  thereof  the 
plaintiff  recover  of  defendant  a  certain  sum  as  its  value, 
it  was  held  that  the  defendant  could  elect  to  tender  the 
property  within  a  reasonable  time,  and  if  he  did  so, 

66  Williams  v.  Wilcox,  66-65.  69  Laughlin  v.  Main,  63-580. 

«T  Ormsby  v.  Nolan.  69-130.  TO  Hunt  v.  Bennett,  4  G.  Gr.,  512. 

«s  Case  v.  Woleben,  52-389.  TI  Dehr  v.  Lampton,  31-172. 


142  ACTIONS    OF    REPLEVIN.  [§    908. 

plaintiff  might  be  enjoined  from  enforcing  his  money 
judgment.72  And  where,  by  the  act  of  the  parties,  the 
property  is  restored  to  defendant  before  judgment  is  ren- 
dered in  his  favor,  he  can  only  recover  damages  for  its  un- 
lawful detention.73  When  the  action  is  to  recover  prop- 
erty seized  under  an  execution,  and  it  is  determined  that 
the  execution  is  void,  plaintiff  is  entitled  to  judgment  for 
the  return  of  the  property.74  If  the  plaintiff  fails  to  pros- 
ecute his  suit,  defendant  will  be  entitled  to  recover  such 
damages  as  he  may  prove  himself  entitled  to,  either  in 
the  action  of  replevin  or  in  an  action  on  the  bond,  nor  can 
an  action  of  replevin  be  so  dismissed  as  to  deprive  defend- 
ant of  his  right  to  have  damages  assessed  and  a  return  of 
the  property  awarded  unless  he  consents  thereto.75 

When  the  property,  though  exempt  from  execution,  is 
voluntarily  sold,  a  money  judgment  for  its  purchase  price 
is  not  exempt.76  If  the  judgment  in  a  replevin  suit  de- 
termines the  title  to  the  property,  it  can  not  be  questioned 
in  an  action  on  the  bond,  but  it  is  otherwise  where  the 
right  to  possession  only  is  settled.77  While  the  judg- 
ment, if  in  favor  of  defendant,  should  direct  a  return  of 
the  property,  yet  the  surety  on  the  bond  will  be  bound, 
though  the  judgment  against  the  principal  be  for  the 
value  of  it  only.78  And  the  judgment  on  the  replevin 
bond  is  at  least  prima  facie  evidence  of  the  measure  of 
damages,  in  an  action  against  the  obligor  on  a  bond  of 
indemnity,  given  to  secure  a  surety  on  the  replevin  bond; 
and  if  it  appears  that  he  has  paid  the  whole  amount  of 
such  indebtedness  it  will  establish  his  claim  unless  it  be 
rebutted.79  And  in  an  action  on  a  replevin  bond,  for  fail- 
ing to  return  the  property,  the  record  in  the  replevin  suit 
is  admissible  in  evidence.80  The  liability  of  sureties  on 
a  replevin  bond  under  particular  facts  and  circumstances 

72  McClelland  v.  Marshall,  19-561.  13;  Buck  v.  Rhodes,  11-348;  Haw- 

78  Harrow  v.  Ryan,  31-156.  ley  v.  Warner,  12-42. 

74  Balm  v.  Nunn,  63-641.  ?«  Mason  v.  Richards,  12-73. 

75  Hall  v.  Smith,  10-45.  T»  Lyon  v.  Northrup,  17-314,  and 

76  Harrier  v.  Fassett,  56-264,  and  cases  cited. 

cases  cited.  so  McGinnls  v.  Hart,  6-204. 

77  Harman  v.  Goodrich,  1  G.  Gr.f 


§  909.]  ACTIONS    OF    REPLEVIN.  143 

is  further  discussed  in  the  cases  cited.81  In  an  action 
against  a  sheriff  to  recover  property  illegally  seized, 
plaintiff  will  not  be  permitted  to  show,  by  way  of  dam- 
ages, that  he  was  compelled  in  order  to  obtain  his  writ 
to  deposit  with  his  surety  a  bond  to  indemnify  him.82 
Plaintiff  is  not  limited  in  recovering  damages  for  deten- 
tion of  the  property  to  cases  where  he  takes  judgment  for 
its  possession,  but  may  recover  such  damages  when  he 
elects  to,  and  does  take  judgment  for  its  value.83  If  the 
defendant  has  a  lien  on  the  property  the  value  of  his  lien 
must  be  determined  and  he  should  recover  costs  if  he  has 
the  right  of  possession.84  The  holder  of  a  first  mortgage 
on  personal  property,  which  has  been  sold  by  a  second 
mortgagee,  the  purchaser  being  in  possession,  can  not 
in  replevin  against  the  two  refuse  to  take  the  property 
under  his  writ  and  recover  judgment  for  its  value  against 
the  second  mortgagee  who  has  parted  with  his  interest 
and  possession.85  In  a  replevin  action  it  was  held  that 
the  fact  that  pending  such  suit  defendant  sought  and 
failed  to  establish  a  mechanic's  lien  on  a  building  cover- 
ing the  property  sought  to  be  replevied,  did  not  bar  his 
right  to  judgment.86 

§  909,  Of  the  execution. — If  the  party  found  entitled 
to  the  property  is  not  already  in  possession  of  it  by  de- 
livery under  the  writ  or  replevin  or  otherwise,  he  may  at 
his  option  have  execution  for  the  specific  delivery  of  the 
property,  or  for  the  value  thereof,  as  determined  by  the 
jury,  and  if  any  article  of  the  property  can  not  be  ob- 
tained on  execution,  he  may  take  the  remainder  with 
the  value  of  the  missing  articles.87  Defendant  is  entitled 
to  a  money  judgment  at  his  option  when  he  is  found  en- 

si  McNorton    v.    Akers,    24-369;  s<  Harvey  v.  Pinkerton,  70  N.  W., 

Hershler  v.  Reynolds,  22-152;  Jan-  192. 

sen  v.  Effey,  10-227;  Kurd  v.  Gal-  ss  Nichols  v.  Sheldon  Bk.,  67  N. 

lager,    14-394;    Struman    v.    Robb,  W.,  582. 

37-311;  Edwards  v.  Cottrell,  43-194.  86  McMeekin  v.  Worcester,  68  N. 

82  Wilson  v.  Hillhouse,  14-199.  W.,  680. 

ss  Cook     v.     Hamilton,     67-394;  «7  Code,  Sec.  4178;  see  Oskaloosa 

Hartley  State  Bk.  v.  McCorkell,  91-  S.  E.  Works  v.  Nelson,  54-519. 
660;    Turner   v.    Younker,    76-258; 
Mclntire  v.  Easlinan,  76-455. 


144  ACTIONS    OF    EEPLEVIN.  [§  909. 

titled  to  the  possession  of  the  property,  and  is  not  already 
in  possession  of  it.88  But  this  election  is  only  intended 
to  apply  to  cases  in  which  the  court  has  jurisdiction  to 
try  and  determine  the  merits  of  the  controversy,  and  not 
to  a  case  where  the  plaintiff  is  defeated  for  lack  of  juris- 
diction of  the  court  trying  the  case.89  The  execution 
must  require  the  sheriff  to  deliver  the  possession  of  the 
property,  particularly  describing  it,  to  the  party  entitled 
thereto,  if  he  is  not  already  in  possession  of  it,  and  may 
at  the  same  time  require  the  sheriff  to  satisfy  any  costs, 
damages,  or  rents  and  profits,  with  interest,  recovered 
by  the  same  judgment,  out  of  the  property  of  the  party 
against  whom  it  was  rendered,  subject  to  execution,  and 
the  value  of  the  property  for  which  judgment  was  re- 
covered should  be  specified  therein,  if  a  delivery  thereof 
can  not  be  had,  and  must,  in  that  respect,  be  deemed  an 
execution  against  property.90  The  execution  may  be  in 
the  following  form : 

FORM   OF   EXECUTION    IN    REPLEVIN. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas,  on  the day  of ,  18 — ,  by  the  judgment  of  the 

district  court  of  county,  Iowa,  recovered  against  - 

the  possession  of  the  following  described  personal  property,  to  wit: 
(here  describe  each  article  of  property,  affixing  the  value  thereto  as 
found  by  the  jury  or  the  court),  together  with  (state  other  sums  re- 
covered as  damages,  costs,  etc.)  in  a  certain  action  then  pending  in 
said  court,  wherein  -  -  was  plaintiff  and  -  -  was  defendant, 
which  judgment  remains  in  force  and  unsatisfied.  You  are  therefore 
commanded  that  you  cause  the  said  above  described  property  forth- 
with to  be  delivered  to  the  said ,  and  that  you  cause  to  be  made 

of  the  goods  and  chattels,  lands  and  tenements  of  the  said ,  sub- 
ject to  execution  in  your  county,  the  sum  of  dollars  damages, 

and  dollars  costs  of  said  action,  together  with  all   legal   costs 

that  may  accrue  by  virtue  of  this  writ,  with  legal  interest,  and  also  in 
case  a  delivery  of  said  property,  or  any  part  thereof,  can  not  be  had, 
that  you  further  cause  to  be  made  of  the  goods  and  chattels,  lands  and 

tenements  of  said  ,  subject  to  execution,  the  sum  of  the  value 

of  said  property  as  above  specified  with   legal  interest  thereon  from 

the  day  of  ,  18 — ,  (date  of  the  judgment)  and  have  said 

money  in  our  said  court   in  seventy  days  from   the   date   hereof,   to 

88  Clark  v.  Warner,  32-219.  so  Code,  Sec.  4177. 

sa  Williams  v.  Chapman,  60-57. 


g§  910,  911.]  ACTIONS    OF    REPLEVIN.  145 

render  the  same  unto  the  said  ,  and  have  you  then  and  there 

this  writ  with  your  doings  thereon. 

Witness  -     — ,  clerk  of  said  court,  with  the  seal  thereof  hereto 
affixed,  this  —      —  day  of  —     — ,  18 — . 

[Seal.]  — ,  clerk,  etc. 

If  the  officer  levies  on  the  property  of  a  third  person  the 
act  is  a  tort,  and  the  writ  affords  no  protection;  he  is 
liable  to  the  true  owner  in  trespass  for  the  value  of  the 
goods.91  Or  replevin  may  be  brought  without  making 
a  demand  for  the  property.92 

§  910.  Of  proceedings  when  property  has  been 
concealed.  —  When  it  appears  by  the  return  of  the  officer, 
or  by  the  affidavit  of  the  plaintiff,  that  any  specific  prop- 
erty which  has  been  adjudged  to  belong  to  one  party,  has 
been  concealed  or  removed  by  the  other  party,  the  court 
or  judge  may  require  such  party  to  attend  and  be  ex- 
amined on  oath,  respecting  such  matter,  and  may  enforce 
its  order  in  this  respect  as  in  cases  of  contempt.93 

§  911.  Of  detinue. — This  action  is  substantially  the 
same  as  replevin,  differing  only  in  the  following  respects, 
viz.:  In  an  action  of  detinue  the  petition  asks  the  de- 
livery of  the  property  claimed  after  judgment. 

No  bond  is  required,  and  no  writ  asked  for  or  'issued 
when  the  action  is  begun,  and  if  the  plaintiff  fails  in  his 
action  he  is  liable  only  for  a  judgment  for  costs.  It  af- 
fords persons  Who  are  unable  to  give  a  bond  an  oppor- 
tunity to  recover  possession  of  personal  property.  The 
action  lies  whenever  the  action  of  replevin  will  lie,  and  it 
is  in  substance  the  same  under  the  code  as  it  was  at  com- 
mon law,  except  as  to  the  enforcement  of  the  judgment. 
The  form  of  petition  used  in  replevin  may  be  used  in  this 
action  except  the  prayer.  The  form  of  prayer  should  be 
as  follows: 

FORM  OF  PRAYER  TO  PETITION  IN  DETINUE. 

Wherefore  plaintiff  demands  judgment  for  said  property  to  be  de- 
livered to  him,  or  for  the  value  thereof  if  the  same  can  not  be  found, 
and  for  damages  and  costs. 

si  Shea  v.  Watkins,  12-605.  ss  Code,  Sec.  4180;  see  chapter  on 

92  Shea  v.  Watkins,  12-605.  Contempts. 

Vol.  ii—io 


CHAPTER  LV. 

OF  ARBITRATION. 

Sec.  912.  What  may  be  submitted. 

913.  Of  the  submission. 

914.  Of  the  powers  of  the  arbitrators. 

915.  Of  the  award. 

916.  Of  proceedings  on  an  award  in  court. 

917.  Of  bonds  to  abide  the  award. 

918.  Of  common  law  submissions  and  awards. 

919.  Of  the  action  on  the  award  or  bond. 

Section  912.  What  may  be  submitted. — All  contro- 
versies which  might  be  the  subject  of  civil  action,  may 
be  submitted  to  the  decision  of  one  or  more  arbitrators, 
in  the  manner  provided  by  our  statute.1  The  submission 
may  be  of  any  particular  matters  or  demands,  or  of  all 
demands  which  the  one  party  has  against  the  other,  or  of 
all  mutual  demands  on  both  sides.2  The  subject  matter 
of  an  action  may,  by  an  order  of  court  upon  agreement 
of  the  parties,  be  submitted  to  arbitration  while  said  ac- 
tion is  pending;3  and  the  parties  to  an  action  pending 
may,  by  agreement  and  without  any  order  of  the  court, 
submit  to  arbitration  all  matters  involved  in  such  action 
between  them;4  but  in  such  case  the  agreement  of  sub- 
mission must  be  acknowledged;5  but  it  has  also  been  held 
that  such  submission,  when  made  by  court  by  consent  of 

iCode,  Sec.  4385;  Conger  v.  lough,  21-111;  McKinnis  v.  Free- 
Dean,  3-463;  Tomlinson  v.  Ham-  man, 38-364;  Woodward  v.  Atwater, 
mond,  8-40;  Van  Horn  v.  Bellar,  3-61;  Fink  v.  Fink,  8-313;  Higgins 
20-255;  McKnight  v.  McCullou^.  v.  Kennedy,  20-474;  Ratliff  v. 
21-111;  McKinnis  v.  Freeman,  38-  Mann,  5-423;  City  of  Marion  v. 
364';  Gorman  v.  Millard,  50-554;  Ganby,  68-142;  Richards  v.  Holt, 
City  of  Marion  v.  Ganby,  68-142;  61-529. 

Richards  v.  Holt,  61-529;  Donican  s  Code,    Sec.   4388;     Schomer    v. 

v.  Mulry,  70-583.  Lynch,  11-461;    Marion  v.   Ganby, 

2  Code,  Sec.  4387;   Tomlinson  v.  68-142. 

Hammond,  8-40;  Van  Horn  v.  Bel-  •*  Higgins  v.  Kennedy,  20-474. 

lar,   20-255;    McKnight  v.   McCul-  5  Fink  v.  Fink,  8-313. 

146 


§  913.]  ARBITRATION.  147 

the  parties,  need  not  be  in  writing,  nor  need  it  be  signed 
and  acknowledged.8  A  proceeding  to  condemn  land  for 
the  extension  of  a  street  in  a  city  may  be  submitted  to 
arbitrators,7  so  the  question  of  whether  an  alleged  nui- 
sance should  be  abated  may  be  submitted  to  arbitrators.8 
.A  public  corporation  may  arbitrate  matters  of  difference 
between  it  and  its  officers.9 

§  913.  Of  the  submission. — The  parties,  or  those  who 
might  lawfully  have  controlled  a  civil  action  in  their  be- 
half for  the  same  subject-matter,  must  sign  and  acknowl- 
edge a  written  agreement,  specifying  particularly  what 
demands  are  to  be  submitted,10  the  names  of  the  arbitra- 
tors11 and  the  court  by  which  the  judgment  on  their 
award  is  to  be  rendered.12  The  submission  may  be  in 
the  following  form: 

FORM  OF  SUBMISSION  TO  ARBITRATORS. 

Whereas  differences  have  existed  between  us  with  relation  to  cer- 
tain claims  and  demands  which has  against  ,  now  to  the 

end  that  the  same  may  be  fully  and  finally  settled  we,  and 

,  do  mutually  agree  that  all  claims  and  demands  which  the  said 

has  against  the  said  -       -  of  every  kind  and  nature  (or  if  it 

is  desired  to  submit  certain  particular  matters  or  demands  they  should 
be  specifically  set  forth),  be  and  the  same  are  hereby  submitted  to 

and as  arbitrators,  who  shall  have  full  power  to  hear  and 

determine  the  same  at  —     -  in  -       -  county,  Iowa,  after  giving  at 

least days'  notice  in  writing  to  each  of  us,  and  at  said  hearing 

either  party  thereto  may  be  represented  by  counsel,  and  may  produce 
such  evidence  as  he  deems  proper,  which  shall  be  heard  by  said  arbi- 
trators, and  that  within days  after  said  hearing,  said  arbitrators 

shall   make  their  award   in   writing,   in   which   they   shall   determine 

what  amount,  if  anything,  is  due  from  the  said  to  ,  and 

when  the  same  shall  be  paid,  which  shall  be  within days  there- 
after, and  said  award  shall  be  signed  by  said  arbitrators,  and  judg- 
ment shall  be  rendered  by  the  district  court  of  county,  Iowa, 

e  City  of  Marion  v.  Ganby,  68-142.  ward  v.  Atwater,  3-61;   Sweney  v. 

7  City  of  Marion  v.  Ganby,   68-  Davidson,  68-386;  Skrable  v.  Pryne, 

142.  93-691;  Older  v.  Quinn,  89-445. 

s  Richards  v.  Holt,  61-529.  "  Code,  Sec.  4386;   McKnight  v. 

»  Dist.  Twp.  v.  Rankin,  70-65.  McCullough,  21-111. 

10  Code,  Sec.  4386;  Fink  v.  Fink.  12  Code,  Sec.  4386;  Love  v.  Burns, 

8-313;    McKnight    v.    McCullough,  35-150;  Foust  v.  Hastings,  66-522; 

21-111;     Love    v.     Burns,     35-150;  see  City  of  Marion  v.  Ganby,  68- 

Foust  v.  Hastings,  66-522;    see  City  142. 
of  Marion  v.  Ganby,  68-142;  Wood- 


148  ARBITRATION.  [§  913. 

lor  the  amount  found  due  by  said  award,  which  award  shall  be  filed 

with  the  clerk  of  the  district  court  of  county,  Iowa,  within 

days  after  the  same  has  been  made. 

Said  arbitrators  are  hereby  authorized  to  fix  the  amount  of  fees 
which  shall  be  allowed,  or  taxed,  in  favor  of  witnesses  that  may  come 
before  them,  and  they  shall  be  allowed  for  their  own  services  at  the 
rate  of  -  -  per  day  during  the  time  they  are  actually  employed  in 
said  arbitration,  which  costs  and  fees  shall  be  allowed  by  them  in 
said  award. 

Dated  at  ,  this day  of  ,  18—. 


FORM  OF  ACKNOWLEDGMENT  TO  THE  SUBMISSION. 

State  of  Iowa,    )  gs 
County,    f 

Be  it  remembered,  that  on  this  —  -  day  of ,  18—,  before 

the  undersigned,  a  notary  public  in  and  for  said  county,  personally 

appeared and ,  to  me  personally  known  to  be  the  identical 

persons  whose  names  are  affixed  to  the  foregoing  submission  to  arbi- 
tration, and  acknowledged  that  they  signed  and  executed  the  same  as 
their  voluntary  act  and  deed,  for  the  purposes  therein  mentioned. 

(Add  official  signature  and  seal.) 

Generally,  an  agent  can  not  submit  matters  in  dispute 
to  arbitration,  unless  authorized  by  his  principal;13  but 
if  he  has  authority  to  prosecute  a  suit,  he  may  submit  to 
a  reference  under  a  rule  of  court;14  nor  can  one  partner, 
unless  expressly  authorized  so  to  do,  submit  partnership 
controversies  to  arbitration,15  but  it  seems  such  unau- 
thorized submission  would  bind  the  one  making  it.16 

A  proceeding  under  the  code,  to  condemn  land  for  the 
extension  of  a  city  street,  is  a  suit  pending  within  the 
meaning  of  section  4388  of  the  code,  and  mav  be  sub- 

o  *  *• 

mitted  to  arbitrators,  on  the  agreement  of  parties,  by 
order  of  the  court.17  So,  the  question  whether  or  not  an 
alleged  nuisance  should  be  abated  may  be  submitted,18 
and  questions  concerning  boundary  lines.19  A  claim  of 

is  Trout  v.  Emmons,  29  111.,  433.          i«  Jones  v.    Bailey,   5   Cal.,   345; 

i*  Buckland  v.  Conway,  16  Mass.,  Karthaus  v.  Ferrer,  1  Pet.,  222. 
396.  if  City  of  Marion  v.  Ganby,  68- 

15  Jones  v.  Bailey,    5  Cal.,   345;  142. 

Buchanan  v.  Curry,  19  John,  137;          is  Richards  v.  Holt,  61-529. 
Buchhoz    v.    Grandjean,    1    Mich.,          i»  Jones    v.   Boston    Mill    Corp., 

367;  Backus  v.  Coyne,  35  Mich.,  5.  6  Pick.,  148;  Id.,  4  Pick.,  507. 


§  914.]  ARBITRATION.  119 

dower  may  be  submitted.20  The  submission  in  any  case 
can  not  be  revoked,  except  by  consent.21  So,  when 
changes  in  civil  township  boundaries  are  made,  and  a  dis- 
trict is  to  be  divided,  if  the  respective  boards  of  directors 
can  not  agree  on  an  equitable  division  of  assets  and  liabil- 
ities, they  must  choose  arbitrators  to  decide  it,  and  their 
decision  will  be  final.22  Where  parties  agreed  orally  to 
settle  difficulties  by  arbitration,  and  have  selected  arbi- 
trators to  whom  they  furnished  evidence  of  their  respec- 
tive claims,  and  where  the  arbitrators  refuse  to  settle 
certain  claims  and  the  parties  waive  them  and  an  award 
is  found  in  favor  of  one  party,  and  complied  with  by  him, 
but  it  was  not  made  in  writing,  and  satisfaction  there- 
with was  expressed  by  both  parties,  they  are  bound  by 
the  award.23  Provisions  in  the  articles  of  incorporation 
of  an  insurance  company  that  all  disputed  claims  shall  be 
arbitrated  before  suit  and  the  award  be  final  and  con- 
clusive will  not  be  enforced.24  Where  a  policy  provided 
that  differences  as  to  the  amount  of  the  loss  should  at 
the  written  request  of  either  party  be  submitted  to  arbi- 
tration, and  that  no  action  should  be  brought  until  after 
the  award,  arbitration  in  the  absence  of  a  request, 
therefore,  is  not  a  condition  precedent  to  an  action  even 
if  such  provisions  are  valid.25 

§  914.  Of  the  powers  of  the  arbitrators. — It  would 
seem  that  where  the  court  would  not  have  jurisdiction  of 
the  subject-matter  submitted,  then  the  arbitrators  can 
have  none,26  and  the  award  being  in  such  a  case  void,  a 
release  of  an  action  by  one  of  the  parties  filed  in  pursu- 
ance of  such  submission  is  void.27 

Arbitrators  are  governed  by  the  same  rules  as  refer- 
ees, except  as  otherwise  agreed  upon  by  the  parties,  or  as 

20  Cox   v.   Jagger,   2   Cow.,   638;  24  Prader  v.  Nat'l  Masonic  Ace. 
Green  v.  Ford,  17  Ark.,   586.  Assn.,  63  N.  W.,  601. 

21  Code,  Sec.  4390.  25  Davis  v.  Anchor  Mut.  Fire  Ins. 

22  Code,  Sec.  2802;   Dist.  Twp.  v.  Co.,  64  N.  W.,  687. 

Dist.  Twp.,  45-104;  Ind.  Dist.,  etc.,  2«  Williams    v.    Walton,    9    Cal., 

v.    Ind.    Dist.,    etc.,    45-391;     Dist.  142. 

Twp.  v.  Dist.  Twp.,  60-141.  a?  Whitney  v.  Stone,  23  Cal.,  275. 

23  Skrable  v.  Pryne,  62  N.  W.,  21. 


150  AEBITEATION.  [§  915. 

otherwise  set  forth  in  the  statute.28  They  are,  however, 
not  required  like  referees  to  make  a  finding  of  facts  and 
their  conclusions  of  law  based  thereon.29  They  can  not 
amend  their  award  after  it  is  once  made  and  delivered 
except  by  consent  of  parties. 

They  must  appoint  the  time  and  place  of  hearing 
unless  the  same  are  fixed  in  the  submission.30  and  must 
give  each  party  timely  notice  of  the  time  and  place  so 
fixed.31  The  notice  of  hearing  may  be  in  the  following 
form: 

FORM  OF  NOTICE  OF  HEARING  BY  ARBITRATORS. 

To : 

You  are  hereby  notified  that  the  undersigned,  who  were  agreed  upon 

by  you  and  to  hear  and  determine  (here  state  what  claims  and 

demands  were  included  in  the  submission),  have  duly  qualified  and  will 

meet  at  in  the  city  of  ,  Iowa,  at  o'clock,  - 

noon,  for  the  purpose  of  hearing  any  evidence  and  proof  which  may  be 
submitted  by  either  party  as  well  as  any  arguments  that  may  be  made. 

Dated ,  Iowa,  this day  of ,  18 — . 

,  )  signature 


-,   f         of 

-,  J  arbitrators. 


But  a  surety  on  a  submission  is  not  entitled  to  notice  of 
the  hearing,32  but  the  parties  may  waive  notice.33  After 
due  notice,  if  one  party  fails  to  appear,  they  can  proceed 
to  hear  and  determine  the  controversy  without  him.34 

In  the  absence  of  an  agreement  they  may  refuse  to  hear 
counsel.35  They  have  power  to  administer  oaths,36  and 
compel  the  attendance  of  witnesses.37  They  can  not  go 
behind  the  question  submitted.38 

§  915.  Of  the  award. — If  the  time  within  which  the 
award  is  to  be  made  is  fixed  in  the  submission,  no  award 

28  Code,  Sees.  4389,  3736  to  3739,  ss  Hill  v.  Hill,  11  Sm.  &  M.,  616; 

3745,   3748;   Thompson  v.  Blanch-  Harding  v.  Wallace,  8  B.  Monroe, 

ard,    2-44;     McKnight    v.    McCul-  536. 

lough,  21-111;  Tomlinson  v.  Ham-  34  Code,  Sec.  4391;  Russell  on  Ar- 

mond,  8-40.  bitration,  3  Ed.,  p.  191. 

20  McKnight  v.  McCullough,  21-  as  Morse  on  A.  and  A.,  page  130. 

111.  ss  Code,     Sec.     4389;     Older    v. 

so  Morse     on     Arbitration     and  Quinn,  89-445. 

Award,  p.  116.  37  Code,  Sec.  4389. 

si  Morse  on  A.  and  A.,  p.  117.  ss  Wyman  v.  Hammond,  55  Me., 

«2  Farmer  v.  Stewart,  2  N.  H.,  97.  534. 


§  915.  ]  ARBITRATION.  151 

made  after  that  time  will  have  any  legal  effect  unless 
made  upon  recommitment  of  the  matter  by  the  court  to 
which  it  is  reported.39  If  the  time  of  filing  the  award  is 
not  fixed  in  the  submission,  it  must  be  filed  within  one 
year  from  the  time  such  submission  is  signed  and  ac- 
knowledged, unless  the  time  is  by  mutual  consent  ex- 
tended.40 The  award  must  be  in  writing,  and  must  be 
delivered  by  one  of  the  arbitrators  to  the  court  desig- 
nated in  the  agreement,  or  it  may  be  enclosed  and  sealed 
by  them  and  transmitted  to  the  court,  and  not  opened 
until  the  court  orders,41  but  they  may  deliver  their  award 
to  the  clerk  of  the  court  personally  in  vacation.42 

.It  must  be  submitted  in  the  manner  required  by  the 
statute  if  the  court  is  to  be  asked  to  enter  judgment  on 
the  award.43  Unless  the  submission  provides  otherwise,  or 
parties  consent  to  a  minority  award,  all  the  arbitrators 
must  concur  in  the  award.44  If  there  is  no  provision  in 
the  submission  respecting  costs,  the  arbitrators  may  ap- 
portion the  same  in  their  discretion.45  In  the  absence  of 
any  provision  in  the  submission,  the  arbitrators  may 
make  their  award  payable  in  installments  without  in- 
terest.46 

The  award  may  be  in  the  following  form: 

FORM  OF  AN  AWARD. 

In  the  matter  of  the  controversy  )  Award 

between ,  of 

and .  )  arbitrators. 

The  undersigned  arbitrators  who  were  duly  appointed  in  the  an- 
nexed submission  to  hear  and  determine  all  claims  and  demands  which 

the  said  had  against  the  said  of  every  kind  and  nature, 

(or  if  certain  particular  demands  only  were  submitted,  so  state)  met 

at ,  in county,  Iowa,  on  the day  of ,  18 — ,  and 

were  then  and  there  duly  sworn  as  such  arbitrators,  and  we  did  give 
to  each  of  the  parties  to  said  submission days'  notice  in  writing 

as  Code,  Sec.  4392.  Cullough,  21-111:  Fink  v.  Fink,  8- 

40  Code,  Sec.  4393.  313;  Love  v.  Burns,  35-150;  Foust 

41  Code,     Sec.     4394;     Love     v.  v.    Hastings,    66-522;     Sweney    v. 
Burns,  35-150,  153.  Davidson,  68-386. 

42  Love  v.  Burns,  35-150, 151;  Me-  **  Richards  v.  Holt,  61-529. 
Knight  v.  McCullough,  21-111.  45  Code,    Sec.     4400;     Ratlifl    v. 

43  Code,  Sees.  4385,  4386;  Conger  Mann.  5-423. 

v.  Dean,  3-463;   M'cKnight  v.  Me-         46  Donican  v.  Mulry,  70-583. 


152  ARBITEATION.  [  §  916. 

that  we  would  meet  on  the  day  of  18 — ,  at  ,  in 

county,  Iowa,  at o'clock,  noon,  and  then  hear  the 

evidence  and  proofs  of  said  parties,  and  the  arguments  of  their  counsel, 
and  we  met  at  said  time  ajid  place,  and  after  hearing  all  the  evidence, 
proofs  and  arguments,  we  do  find  and  adjudge  that  there  is  now  due 

and  owing  from  the  said to  the  said  the  sum  of  - 

dollars,  which  sum  it  is  ordered  that  said  -  pay  to  said  - 

within days  from  this  date.     We  further  find  that  (here  name 

the  witnesses)   were  each  in  attendance  —     -  days  on  said  hearing, 

and  they  are  allowed  dollars  per  day  for  each  day's  attendance 

as  their  fees.  That  we,  as  arbitrators,  have  each  been  occupied  in  the 
hearing  of  said  controversy  and  in  agreeing  upon  and  in  preparing  our 

award, days. 

Dated ,  Iowa,  the  18—. 

signature 

of 
arbitrators. 

§  916.  Of  proceedings  on  an  award  in  court. — The 
cause  will  be  entered  in  the  docket  of  the  court  at  the 
term  to  which  the  award  is  returned,  and  will  be  called  up 
and  acted  on  in  its  order.  But  the  court  may  require 
actual  notice  to  be  given  either  party,  when  it  appears 
necessary  and  proper,  before  acting  on  the  award.47  The 
award  may  be  rejected  by  the  court  for  any  legal  and  suf- 
ficient reasons,  or  it  may  be  re-committed  for  a  hearing 
to  the  same  arbitrators,  or  to  any  others  agreed  upon  by 
the  parties,  or  appointed  by  the  court  if  they  cannot 
agree.48  It  may  be  rejected  if  it  appears  that  one  of  the 
parties  was  not  bound  by  or  did  not  authorize  the  arbi- 
tration,49 or  if  one  of  the  arbitrators  refused  to  act.50 

It  may  entertain  jurisdiction  to  set  aside  an  award 
made  by  arbitrators  under  the  code  to  make  division  of 
assets  and  liabilities  in  case  of  a  division  of  a  district 
township.51  But  it  can  not  decrease  the  amount  of  the 
award  in  such  case,  nor  differently  apportion  the  costs.52 

It  may  be  set  aside  for  fraud,  mistake,  misconduct  or 

*?  Code,  Sec.  4396.  Daniels    v.    Van    Fossen,    11-195; 

is  Code,    Sec.    4397;    Sullivan    v.  Sharp  v.  Woodbury,  18-195. 

Frink,  3-66;  Dunn  v.  Starkweather,  *»  Sweney  v.  Davidson,  68-386. 

6-466;  Ratliff  v.  Mann,  5-423;  Hig-  »o  Kent  v.  French,  76-187. 

gins  v.  Kinneady,  20-474;    Sweney  si  Dist.  Twp.  v.   Dist.   Twp.,  54- 

v.  Davidson,  68-386;    M.   &  M.   R.  286. 

Co.  v.  S.  C.  &  St.  P.  R.  Co.,  49-604;  sz  Dist.    Twp.   v.    Ind.    Dist.,   60- 

Depew  v.  Davis,  2  G.  Gr.,  260;  Me-  141;  Ratliff  v.  Mann,  5-423. 


§  916.]  ARBITRATION.  153 

partiality  of  the  arbitrators.53  To  entitle  a  party  to  have 
an  award  set  aside  for  a  mistake  or  for  fraud  he  must 
show  the  same  and  that  he  was  prejudiced  thereby  and 
that,  but  for  it,  the  award  would  have  been  different.54 
If  there  be  error  or  mistake  in  their  finding  it  must  be 
made  apparent.55 

The  decision  of  the  arbitrators  will  stand  until  it  is 
shown  that  they  have  abused  the  discretion  given  them  by 
law  and  the  agreement  of  submission.56  Nor  will  an 
award  be  set  aside  because  it  was  not  "enclosed  and  sealed 
and  transmitted  to  the  court"  when  the  record  shows  that 
it  was  placed  in  the  hands  of  the  clerk  by  one  of  the  arbi- 
trators.57 

Nor  can  an  award  be  rejected  or  re-committed  at  the 
mere  discretion  of  the  court.58  But  if,  by  the  terms  of  the 
submission,  they  are  to  determine  all  questions  at  issue, 
it  may  be  set  aside  if  not  final  and  conclusive  of  the  rights 
of  the  parties.59  It  will  not  be  set  aside  for  mistake  unless 
it  is  shown  that  if  the  mistake  had  not  occurred  the  award 
would  have  been  different,  and  more  favorable  to  the 
party  complaining.60  When  the  award  has  been  adopted 
it  must  be  filed  and  entered  of  record,  and  will  have  the 
same  force  and  effect  as  the  verdict  of  a  jury;  judgment 
may  be  entered  and  execution  issued  thereon.61  And 
when  the  award  has  been  returned  to  court  it  is  a  proceed- 
ing in  court,  and  prior  to  its  adoption  is  in  the  nature  of  a 
verdict  which  has  been  agreed  upon  but  not  reported,  and 
the  parties  cannot  abandon  the  proceeding  and  sue  upon 
the  award  as  a  common  law  award.62  Our  statute  pro- 
vides that  nothing  in  it  shall  be  construed  to  affect  in 
any  manner  the  control  of  the  court  over  the  parties,  the 
arbitrators  or  their  award;  nor  to  impair  or  affect  any  ac- 
tion on  the  award,  or  on  any  bond  or  other  engagement  to 

ss  Sullivan  v.  Frink,  3-66;  Adams  ss  Brown  v.  Harper,  54-549. 

v.  Bowery  Fire  Ins.  Co.,  85-6.  59  The  M.  &  M.  R.  Co.,  v.  The  S. 

s*  Tank  v.  Rohweder,  67  N.  W.,  C.  &  St.  P.  R.  Co.,  49-604. 

106.  60  Gorham  v.  Millard,  50-554. 

55  Dunn  v.   Starkweather,   6-466.  ei  Code,  Sec.  4398. 

56  Ratliff  v.  Mann.  5-423.  62  Older  v.  Quinn,  89-445 

57  Higgins  v.  Kinneady,  20-474. 


154  ARBITBATIOtf.  [§§  917,  918. 

abide  an  award.62  When  an  appeal  is  taken  to  the  su- 
preme court  on  a  judgment  rendered  on  an  award,  copies 
of  the  submission  and  award,  together  with  all  affidavits, 
must  be  filed  with  the  clerk  of  the  supreme  court.63 

A  justice  of  the  peace  may  render  a  judgment  on  an 
award  when  the  amount  is  within  his  jurisdiction.64  And 
an  appeal  will  not  lie  from  a  judgment  of  a  justice  on  an 
award,  and  his  refusal  to  set  aside  the  award  or  to  re- 
commit the  case  may  be  reviewed  on  writ  of  error.65  The 
willful  misconduct  of  an  arbitrator  may  be  shown  to  de- 
feat an  arbitrator  who  sues  for  his  fees.66 

§  917.  Of  bonds  to  abide  the  award. — Often  when 
parties  submit  matters  in  controversy  to  arbitrators,  they, 
at  the  time  of  making  the  submission,  enter  into  a  bond 
to  abide  the  determination  of  the  arbitration.  Said  bond 
may  be  in  the  following  form: 

FORM  OF  BOND  TO  ABIDE  AWARD  OF  ARBITRATORS. 

I, ,  hereby  acknowledge  myself  indebted  to in  the  penal 

sum  of hundred  dollars,  lawful  money  of  the  United  States,  well 

and  truly  to  be  paid.    The  condition  of  this  obligation  is  this,  that 

whereas  said and did,  on  the day  of  ,  18 — , 

enter  into  a  written  agreement  to  submit  certain  claims  and  demands 
therein  mentioned  to and  as  arbitrators  to  hear  and  de- 
termine, now  if  the  said  shall  well  and  truly  abide  by  the 

award  which  may  be  made  by  said  arbitrators,  and  fulfill  all  the  condi- 
tions thereof  on  his  part,  then  this  obligation  to  be  null  and  void, 
otherwise  to  be  in  full  force  and  virtue. 

Dated day  of  ,  18—. 

,  principal. 

,      surety. 

(The  above  form  of  bond  can  be  changed  to  suit  each  case,  or  a 
mutual  obligation  may  be  entered  into  between  them.) 

§  918.  Of  common  law  submissions  and  awards, 
— At  common  law  parties  might  submit  by  parol,  or  in 
writing,  any  matter  in  controversy  between  them  to  arbi- 
tration, and  that  power  has  not  been  affected  by  the 
statute.67  And  the  remedy  upon  an  award  of  arbitrators 

62  Code,  Sec.  4401.  ««  Bever  v.  Brown,  56-565. 

«s  Code,  Sec.  4399.  «?  Morse  on  A.  &  A.,  p.  43;  Con- 

e*  Whitis  v.  Culver,  25-30.  ger  v.   Dean,   3-463;    McKinnis  v. 

«5  Whitis  v.  Culver,  25-30.  Freeman,  38-364;  Fink  v.  Fink,  8- 


§  919.]  ARBITRATION.  15 J 

when  the  submission  has  not  been  in  conformity  with  the 
statute  is  by  an  action  thereon.68  Such  a  submission  is 
construed  most  liberally,69  and  in  the  absence  of  a  show- 
ing of  fraud,  or  partiality,  a  common  law  award  will  be 
sustained;70  and  mere  departures  from  the  agreement  of 
submission,  which  in  no  way  affect  the  rights  of  the  par- 
ties, will  not  defeat  an  action  on  a  common  law  award.71 
Nor  will  a  judgment  on  a  common  law  award  be  disturbed 
unless  it  be  plainly  and  palpably  unsupported  by  the  evi- 
dence.72 

§  919.  Of  the  action  on  the  award  or  bond, — After 
the  award  is  made,  if  the  party  who  has  a  duty  to  perform 
under  it,  fail  to  comply  with  its  provisions,  an  action  will 
lie  on  the  award  against  him,73  or  if  a  bond  has  been  given 
conditioned  for  compliance  with  the  award,  an  action  may 
be  brought  on  it.74  The  petition  on  an  award  may  be  in 
the  following  form: 

FORM  OF  PETITION  ON  AN  AWARD  OF  ARBITRATORS. 

Title,     ) 
Venue.    \ 

The  plaintiff  for  cause  of  action  against  the  defendant  states: 

That  on  or  about  the day  of ,  18 — ,  certain  disputes  and 

controversies  existed  between  the  plaintiff  and  defendant  concerning 
(here  insert  statement  of  disputes  as  set  forth  in  submission),  and 
thereupon  on  the  day  above  mentioned,  said  plaintiff  and  defendant 
agreed  in  writing  to  submit  the  same  to  and  as  arbi- 
trators between  them,  a  copy  of  which  said  agreement  is  hereunto  an- 
nexed and  marked  exhibit  "A,"  and  made  a  part  thereof. 

That  thereafter  said  arbitrators  duly  qualified  and  after  giving  due 
notice  to  each  of  said  parties  of  the  hearing  of  the  matters  in  dispute 

between  plaintiff  and  defendant,  did  on  the day  of ,  18 — , 

at ,  hear  said  parties  and  the  evidence  and  arguments  introduced 

by  them,  and  on  the  same  day  (or  if  another  day  state  the  time),  said 
arbitrators  duly  made  and  published  their  award  in  writing  of  and 
concerning  the  matters  so  referred  to  them,  and  thereby  awarded  and 

313;     Foust    v.    Hastings,   66-522;  TO  McKinnis  v.  Freeman,  38-364. 

Love  v.   Burns,  35-150;    McKnight  7i  Foust  v.  Hastings,  66-522. 

v.  McCullough,  21-111.  72  Foust  v.   Hastings,   66-522. 

os  Conger    v.    Dean,    3-463;    Me-  73  McKinnis  v.  Freeman,  38-364; 

Kinnis  v.  Freeman,  38-364;  Thorn-  Foust   v.    Hastings,   66-522;    Code, 

ton  v.  McCormick,  75-285.  Sec.  4401. 

e»  McKinnis  v.  Freeman,  38-364.  74  Code,  Sec.  4401;  Estee's  Pldg. 

Vol.  1,  Sec.  651. 


156  AKBiTKATION.  [§  919. 

found;  that  said  defendant  was  justly  indebted  to  the  plaintiff  in  the 
sum  of  —  —  dollars,  for  and  on  account  of  (here  insert  statement  of 
matters  on  which  amount  was  found  due),  a  copy  of  which  said  award 
is  hereto  attached  and  marked  exhibit  "B,V  and  made  a  part  hereof. 
That  plaintiff  duly  performed  all  the  conditions  of  said  award  on  his 

part,  and  afterward,  on  or  about  the  -      —  day  of ,  18 ,  caused 

a  notice  of  said  award  and  its  terms  and  conditions  to  be  served  on 
the  defendant,  and  then  demanded  of  him  payment  of  said  sum  of 

-  dollars,  so  awarded  to  the  plaintiff,  as  aforesaid. 

That  the  defendant  has  not  paid  the  same  nor  any  part  thereof 
though  the  time  within  which  said  sum  was  to  be  paid  according  to 
the  terms  of  said  award  has  long  since  elapsed,  and  there  is  now  due 
from  the  defendant  to  the  plaintiff  thereon  the  sum  of  -  -  dollars, 
with  interest  at  -  -  per  cent,  from  the  -  -  day  of  -  — ,  18 — , 
for  which  amount  plaintiff  prays  judgment  against  said  defendant  and 
for  the  costs  of  this  action. 

(Add   verification.)  ,  attorney  for  plaintiff. 

(Attach  the  exhibits  referred  to  in  the  petition.) 

An  action  to  recover  on  an  award  is  an  action  at  law, 
and  can  not  be  referred  against  the  objection  of  a  party.75 

76  McMartin  v.  Bingham,  27-234;      see  Bellows  v.  Dist.  Twp.,  70-320. 


CHAPTER  LVI. 

OF  THE  ADMISSION  OF  ATTORNEYS. 

Sec.  920.     Of  statutory  provisions. 

921.     Of  rules  of  the  supreme  court. 

Section  920.  Of  statutory  provisions. — The  power  to 
admit  persons  to  practice  as  attorneys  and  counselors  in 
the  courts  of  Iowa,  or  any  of  them,  is  vested  exclusively  in 
the  supreme  court.1  Every  applicant  for  admission  must 
be  at  least  twenty-one  years  old,  of  good  moral  character 
and  an  inhabitant  of  the  State,  and  must  have  actually 
and  in  good  faith  pursued  a  regular  course  of  study  of  the 
law  for  at  least  two  full  years,  either  in  the  office  of  a  mem- 
ber of  the  bar  in  regular  practice  of  this  State  or  other 
State,  or  of  a  judge  of  a  court  of  record  thereof,  or  in  some 
reputable  law  school  in  the  United  States,  or  partly  in 
such  office  and  partly  in  such  school,  but  in  reckoning 
such  period  of  study  the  school  year  of  any  such  law  school 
consisting  of  not  less  than  thirty-six  weeks,  exclusive  of 
vacations,  shall  be  considered  equivalent  to  a  full  year.2 

Every  such  applicant  must  be  examined  by  the  court, 
or  by  a  committee  of  not  less  than  three  members  of  the 
bar  appointed  by  the  court,  as  to  his  learning  and  skill  in 
the  law;  and  the  court  must  be  satisfied,  before  admitting 
to  practice,  that  the  applicant  has  actually  and  in  good 
faith  devoted  the  time  above  stated  to  the  study  of  the 
law,  and  possesses  the  requisite  learning  and  skill 
therein.3 

Such  examinations  must  be  held  in  open  court;  pro- 
vided that  the  graduates  of  the  law  department  of  the 
State  university  may  be  examined  at  the  university  in 

1  Code,  Sec.  309.  s  Code,  Sec.  311. 

2  Code,  Sec.  310. 

157 


158  THE  ADMISSION  OF  ATTOBXEYS.  [§  921. 

Iowa  City  by  a  committee  of  not  less  than  three  members 
of  the  bar  or  judges  of  courts  of  record  appointed  by  the 
supreme  court  for  that  purpose;  and  upon  the  certificate 
of  such  committee  that  such  candidates  possess  the 
learning  and  skill  requisite  for  practice  of  the  law,  they 
shall  be  admitted  without  further  examination.4 

A  person  becoming  a  resident  of  this  State,  after  having 
been  admitted  to  the  bar  of  any  other  of  the  United  States 
in  which  he  has  previously  resided,  may,  in  the  discretion 
of  the  court,  be  admitted  to  practice  in  Iowa  without  ex- 
amination or  proof  of  period  of  study  or  proof  of  other 
qualifications  required  herein,  and  on  satisfactory  proof 
that  he  has  practiced  law  regularly  for  not  less  than  one 
year  in  the  State  from  which  he  comes,  after  having  been 
duly  admitted  to  the  bar  according  to  the  laws  of  such 
State.5 

Persons  admitted-  to  the  bar  must  take  an  oath,  or 
affirmation,  to  support  the  constitution  of  the  United 
States  and  of  the  State  of  Iowa,  and  to  faithfully  dis- 
charge the  duties  of  an  attorney  and  counselor  of  this 
State,  according  to  the  best  of  their  ability.6 

The  supreme  court  is  authorized  by  the  law  to  prescribe 
by  general  rules,  the  mode  in  which  examinations  shall 
be  conducted,  and  in  which  the  qualifications  required  as 
to  age,  residence,  character  and  term  of  study  shall  be 
proved,  and  may  make  further  rules  not  inconsistent  with 
the  law  for  the  purpose  of  carrying  out  its  object  and  in- 
tent,7 Members  of  the  bar  from  other  States,  actually 
engaged  in  any  cause  or  matter  pending  in  any  court  in 
this  State,  may  be  permitted  by  such  court  to  appear  in 
and  conduct  such  cause  or  matter,  while  retaining  his  resi- 
dence in  another  State,  without  being  subject  to  the  pro- 
visions of  the  law  heretofore  stated.8 

§  921.  Of  rules  of  the  supreme  court. — The  su- 
preme court  has  adopted  the  following  rules  which  are 
now  in  force  with  reference  to  admission  to  the  bar,  viz: 

*  Code,  Sec.  312.  1  Code,  Sec.  315. 

B  Code,  Sec.  313.  8  Code,  Sec.  316. 

e  Code,  Sec.  314. 


§  921.  J  THE  ADMISSION  OF  ATTORNEYS.  159 

98.  Examinations  of  applicants  for  admission  to  the 
bar  will  be  held  at  each  regular  term  of  the  court  com- 
mencing on  the  first  day  of  the  term. 

99.  Each  applicant  for  admission  shall,  at  least  five 
days  before  the  first  day  of  the  term  at  which  he  asks  to 
be  examined,  file  with  the  clerk  a  written  request  for  ex- 
amination in  his  own  handwriting  and  signed  by  himself, 
accompanied  with  proofs  of  his  qualifications  as  to  age, 
residence  and  character  and  time  of  study,  as  required  by 
code,  section  310,  all  prepared  and  presented  in  the  man- 
ner prescribed  by  these  rules. 

100.  Proof  of  qualification  as  to  age,  character,  place 
of  residence,  and  time  and  place  of  study,  shall  be  by  affi- 
davit made  before  some  officer  authorized  to  administer 
oaths.     When  made  before  an  officer  not  having  a  seal, 
other  than  a  judge  of  the  supreme,  district  or  superior 
courts  of  this  State,  his  official  character  and  signature 
shall  be  authenticated  by  a  proper  certificate,  attested  by 
the  seal  of  a  clerk  of  a  court  of  record. 

The  proof  of  the  applicant's  character,  residence  and 
age,  shall  be  by  affidavits  from  at  least  two  witnesses,  and 
the  applicant  shall  also  make  affidavit  as  to  his  age  and 
place  of  residence.  Proof  of  his  term  of  study  shall  be  by 
affidavit  of  the  member  of  the  bar  or  judge,  with  whom  he 
pursued  his  studies;  and  when  he  has  studied  at  a  law 
school,  such  fact  and  his  term  of  study  shall  be  shown  by 
the  affidavit  of  one  or  more  of  the  professors  or  instruc- 
tors of  such  school.  Such  affidavits  must  show  that  the 
applicant  has  actually,  and  in  good  faith,  pursued  the 
study  of  the  law  in  the  manner  and  for  the  time  prescribed 
by  the  statute;  and  must  also  show  that  the  affiant  is 
a  practicing  lawyer,  judge  of  a  court  of  record,  or  professor 
or  instructor  in  a  law  school  at  which  the  applicant 
studied. 

101.  In  estimating  the  time  of  study,  a  school  year  of 
thirty-six  weeks  spent  in  a  reputable  law  school  in  the 
United  States  shall  be  equivalent  to  a  full  year  spent  in 
an  office,  and  a  fraction  of  a  school  year  spent  in  such  law 
school  shall  be  considered  the  equivalent  of  the  same  frac- 


160  THE  ADMISSION  OF  ATTOBNEYS.  [§  921 

tion  of  a  full  year  spent  in  an  office  of  an  attorney  or  judge. 

102.  On  the  morning  of  the  first  day  appointed  for  the 
examination,  the  court  will  appoint  a  committee  of  not 
less  than  three  members  of  the  bar,  who,  with  the  attorney 
general,  as  ex  officio  chairman  of  the  committee,  will 
assist  in  the  examination  of  applicants  for  admission. 

103.  The  court  will  also  prepare  not  less  than  thirty 
printed  questions  to  be  submitted  to  each  applicant  which 
he  shall  answer  in  writing.   While  engaged  in  answering 
these  questions  he  shall  not  have  access  to  books  or  pa- 
pers, nor  will  he  communicate  with  any  one  upon  the  sub- 
ject of  the  examination.    The  printed  questions  will  be 
varied  at  each  term. 

104.  Upon  consideration  of  the  proofs  as  to  qualifica- 
tion and  of  the  oral  and  written  examinations,  the  court 
will  admit  or  reject  the  candidate. 

105.  Students  in  the  law  department  of  the  university 
who  are  recommended  by  the  faculty  of  said  department 
as  candidates  for  graduation,  and  as  persons  of  good 
moral  character  who  have  actually  and  in  good  faith  stud- 
ied law  for  the  time  and  in  the  manner  required  by 
statute,  at  least  one  year  of  such  study  having  been  as  a 
student  in  said  department,  may  be  examined  at  the  uni- 
versity by  a  committee  composed  of  not  less  than  three 
persons,  members  of  the  bar,  or  judges  of  courts  of  record, 
appointed  by  the  supreme  court  for  that  purpose,  and 
upon  the  certificate  of  such  committee  that  such  candi- 
dates possess  the  learning  and  skill  requisite  for  the  prac- 
tice of  law,  they  shall  be  admitted  without  further  exam- 
ination. 

106.  The  chief  justice  or  any  judge  of  this  court  may 
administer  the  oath  prescribed  by  the  statute  at  Iowa  City 
to  each  and  every  person  recommended  by  the  examining 
committee  appointed  to  examine  students  of  the  law  de- 
partment, and  the  person  so  administering  the  oath  shall 
report  to  the  clerk  of  this  court  the  names  and  postoflice 
addresses  of  the  persons  so  admitted.     The  clerk  will 
thereupon  enter  of  record  the  fact  of  their  admission,  and 
upon  payment  of  the  requisite  fee  will  issue  to  each  of  the 


§,921.]  THE  ADMISSION   OF  ATTOKNEYS.  161 

persons  so  reported,  a  certificate  of  admission  to  the  bar. 

107.  Any  person  who  becomes  a  resident  of  this  State 
after  having  been  admitted  to  the  bar  of  any  other  of  the 
United  States  in  which  he  has  previously  resided,  upon 
satisfactory  proof  that  he  is  at  least  twenty-one  years  of 
age,  of  good  moral  character  and  an  inhabitant  of  this 
State,  and  that  he  has  practiced  law  regularly  for  not  less 
than  one  year  in  the  State  from  which  he  came,  may  be 
admitted  to  practice  in  this  State  without  examination,  or 
proof  of  the  period  of  study  required  of  other  applicants. 

Proof  of  admission  to  the  bar  in  another  State  may  be 
made  by  the  original  certificate  of  admission,  or  by  a  duly 
authenticated  copy  of  the  record  showing  his  admission 
to  the  bar,  proved  as  records  of  sister  States,  must  be 
when  admitted  in  evidence  in  the  courts  of  this  State. 

Proof  of  other  qualifications  must  be  made  in  the  same 
manner  as  the  showing  required  of  applicants  for  exam- 
ination. 

108.  Any  member  of  the  bar  of  another  State  actually 
engaged  in  any  cause  or  matter  pending  in  this  court  may 
appear  in  and  conduct  such  cause  or  matter,  while  re- 
taining his  residence  in  such  other  State,  without  being 
admitted  to  practice  under  the  foregoing  provisions. 


Vol.  11-11 


CHAPTER  LVII. 

OF  THE  ADMINISTRATION  OF  OATHS. 
Sec.  922.    Who  may  administer. 

Section  922.  Who  may  administer. — Judges  of  the 
supreme,  district,  superior  and  police  courts,  clerks  of 
said  courts  and  their  deputies;  county  auditors  and  their 
deputies;  justices  of  the  peace  and  notaries  public  within 
the  counties  of  their  residence;  sheriffs  and  their  depu- 
ties, in  cases  where  they  are  authorized  by  law  to  select 
commissioners  or  appraisers,  or  to  impanel  jurors  for  the 
view  or  appraisement  of  property,  or  are  directed  as  an 
official  duty  to  have  property  appraised,  or  take  the 
answers  of  garnishees;  the  governor,  secretary  of  State, 
auditor  and  treasurer  of  State,  in  any  matter  pertaining  to 
the  business  of  their  respective  offices,  or  that  may  come 
before  them  for  consideration  and  action  as  members  of 
the  executive  council;  the  mayor  and  clerk  of  cities  and 
towns;  judges  and  clerks  of  election,  township  clerks,  the 
chairman  of  the  board  of  supervisors;  the  surveyor  or 
coroner  in  any  county,  in  relation  to  any  duty  imposed 
upon  either  of  them  where  the  administration  of  an  oath 
may  be  required ;  members  of  all  boards  of  any  state  in- 
stitutions, of  all  commissions,  boards  or  bodies  created 
by  law,  and  all  persons,  referees  or  appraisers  appointed 
by  authority  of  law,  who  have  any  duty  to  perform  by 
virtue  of  their  office  or  appointment  requiring  the  admin- 
istration of  oaths,  are  authorized  to  administer  oaths  and 
take  affirmations. 

Notaries  public  may  perform  such  services  in  any  ad- 
joining county  in  which  they  have  filed  with  the  clerk  of 
the  district  court  a  certified  copy  of  the  certificate  of  their 
appointment1  The  court,  that  is,  the  judge  while  hold- 
ing court,  may  administer  an  oath.2 

i  Code,  Sec.  393.  2  State  v.   Caywood,   65    N.   W. 

Rep.,  385. 
162 


CHAPTER  LVIII. 

OF  ASSIGNMENTS  FOR  THE  BENEFIT  OF  CREDITORS. 

Sec.  923.  When  valid  as  a  general  assignment. 

924.  When  valid  as  a  partial  assignment. 

925.  Of  assignments  embraced  in  several  instruments. 

926.  Of  defective  assignments. 

927.  Of  insolvency. 

928.  Of  assignments  by  partners. 

929.  Of  the  inventory. 

930.  Of  property  passed  by  the  assignment. 

931.  Of  the  rights  of  the  assignee. 

932.  Of  the  duty  of  the  assignee. 

933.  Of  the  notice. 

934.  Of  the  filing  of  claims. 

935.  Of  claims  filed  after  three  months. 
9i56.  Of  the  assignee's  report  of  creditors. 

937.  Of  contesting  claims. 

938.  Of  priority  of  taxes. 

939.  Of  preferred  claims. 

940.  Of  dividends. 

941.  Of  the  settlement. 

942.  Of  sale  of  the  property. 

943.  Of  removal  of  the  assignee. 

944.  Of  the  death  or  misconduct  of  the  assignee. 

Section  923.    When  valid  as  a  general  assignment. 

—Under  our  law  no  general  assignment  of  property  by 
an  insolvent  person,  firm  or  corporation,  or  in  contem- 
plation of  insolvency,  for  the  benefit  of  creditors,  will  be 
valid  unless  it  is  made  for  the  benefit  of  all  the  creditors 
in  proportion  to  the  amount  of  their  respective  claims; 
and  the  assent  of  the  creditors  to  such  an  assignment  is 
presumed.1  Such  an  assignment  may  be  in  the  form  of  a 
deed  and  may  be  executed  in  another  State.2 

If  the  instrument  purports  on  its  face  to  be  a  general 
assignment  it  will  be  so  treated,  although  it  designates 
persons  as  creditors  who. do  not  hold  valid  claims.3  It 
would,  however,  be  otherwise  if  it  is  made  for  a  fraud- 

iCode,  Sec.  3071.  s  Hamilton-Brown    Shoe    Co    v 

2  Schee  v.  La  Grange,  78-101.  Mercer,  84-537. 

163 


164  ASSIGNMENTS.  [§  923. 

ulent  purpose  or  for  the  benefit  of  a  portion  of  the  cred- 
itors only.  The  following  matters  will  not  avoid  an  assign- 
ment: Omitting  property  which  is  exempt  from  execution; 
the  fact  that  the  assignor  supposes  he  will  escape  further 
liability  for  his  debts;  the  fact  that  some  of  the  creditors 
are  attempting  to  defraud  others  under  the  assignment;4 
the  fact  that  the  assignee  is  directed  to  sell  the  property 
when  convenient,  and  as  soon  as  it  can  be  done  without 
material  sacrifice;5  a  provision  in  an  assignment  for  the 
payment  of  the  debts  as  fast  as  they  become  due;6  a  pro- 
vision authorizing  the  assignee  to  compound  with  debt- 
ors ;7  the  failure  of  the  assignee  to  report  the  amount  and 
condition  of  the  estate;8  the  employment  by  the  assignee 
of  the  assignor.9  The  following  matters  wrill  avoid  an 
assignment:  When  it  is  for  the  benefit  of  creditors  and 
preferences  are  given;10  authorizing  the  assignee  to  sell 
on  credit.11 

A  creditor  or  a  co-debtor  may  be  the  assignee.12  Deliv- 
ery of  the  assignment  to  the  attorney  of  the  assignor, 
with  directions  to  file  it  is  in  effect  a  delivery  to  the 
assignee.13  A  general  assignment  directing  the  appli- 
cation of  the  property  of  the  insolvent  to  the  payment 
of  his  debts  will  not  affect  a  creditor's  right  to  priority.1* 
A  general  assignment  for  the  benefit  of  creditors  may  be 
in  the  following  form: 

FORM  OF  A  GENERAL  ASSIGNMENT  FOR  THE  BENEFIT  OF 

CREDITORS. 

The  undersigned  (name),  a  (describe  the  business),  residing  in  the 

city  (or  town)  of ,  in  the  county  of ,  and  State  of  Iowa,  being 

insolvent  and  being  desirous  of  having  all  of  my  property  which  is  sit- 
uated in  the  city  (or  town)  of ,  in county,  Iowa,  applied  in 

payment  of  my  debts,  do  hereby  make  a  general  assignment  to  (name  of 
assignee)  as  assignee,  a  (state  his  business),  residing  in  the  city  (or 
town)  of  ,  in  the  county  of  ,  and  State  of  Iowa,  of  all  of 

<  Bradley  v.  Bischel,  81-80.  10  Wise  v.  Wilds,  77-586;  Arnold 

5  Wooster  v.  Stanfield,  11-128.  v.  Wilds,  77-593. 

e  Meeker  v.  Sanders,  6-60.  "  Meeker  v.  Sanders,  6-61;  Berry 

7  Berry  v.  Hayden,  7-469.  v.  Hayden,  7-469. 

s  Savery  v.  Spaulding,  8-239.  «  Wooster  v.  Stanfield,  11-128. 

»  Savery  v    Spaulding,  8-239.  *3  American  v.  Frank,  62-202. 

i*  In  re  Carter,  67  N.  W.,  239. 


?.  }88' 


§§  924,  925.]  ASSIGNMENTS.  165 

my  property  both  real  and  personal  of  every  kind  and  nature,  and 
authorize  said  assignee  to  sell  the  same  and  apply  the  proceeds  thereof, 
to  the  payment  of  all  of  my  debts  and  for  the  -benefit  of  all  of  my 
creditors  in  proportion  to  the  amount  of  their  respective  claims  with- 
out any  preferences  whatsoever. 

Dated  this ,  day  of  ,  18—. 

,  assignor. 

State  of  Iowa, 
County. 

Be  it  remembered  that  on  this  day  of  ,  18 — ,  per- 
sonally appeared  before  me  (name),  a  notary  public  in  and  for  (name 
of  county),  (name  of  assignor),  the  assignor  above  named,  presumably 
known  to  me  to  be  the  identical  person  whose  name  is  affixed  to  the 
above  and  foregoing  instrument,  as  assignor,  and  acknowledged  the 
execution  of  the  same  to  be  his  voluntary  act  and  deed  for  the  pur- 
poses therein  mentioned. 

Witness  my  hand  and  notarial  seal  the  day  and  date  above 
written. 

[Seal.]  (Signature  of  notary), 

Notary  public  in  and  for : —  County,  Iowa. 

§  924.  When  valid  as  a  partial  assignment. — The 
common-law  right  of  an  insolvent  to  make  a  partial 
assignment  for  the  benefit  of  creditors  is  not  affected  by 
the  statute.15  And  the  provisions  of  the  statute  with  ref- 
erence to  a  general  assignment  do  not  apply  in  such 
a  case.16  If  a  debtor  acts  without  fraud  he  may  even 
transfer  property  to  certain  creditors  in  payment  of  their 
claims  and  thereafter  make  a  general  assignment.17  A 
debtor  may  encumber  all  of  his  property  to  secure  a 
portion  of  his  debts,  even  though  nothing  is  left  for  the 
payment  of  other  creditors.18  Nor  will  the  validity  of 
such  partial  assignment  be  effected  by  the  knowledge  of 
the  debtor  that  other  creditors  are  not  provided  for,  or 
that  he  knew  he  was  insolvent,  or  that  he  intended  to 
exclude  other  creditors  from  sharing  in  his  estate.19 

§  925.  Of  assignments  embraced  in  several  in- 
struments.—  No  general  rule  can  be  laid  down  from 

is  Loomis  v.  Stewart,  75-387.  13-474;    Davis    v.   Gibbon,    24-257; 

IB  Buck  v.  Chase,  85-296.  Farwell  v.  Howard,  26-381. 

IT  Lampson    v.    Arnold,    19-479;  19  Cowles  v.  Rickets,  1-582;  But- 

Van  Patten  v.  Burr,  52-518;  Bolles  ler   v.    Diddy,    83-533;    Stewart   v. 

v.  Creighton,  73-199.  Mills    County    Nat'l    Bk.,    76-571; 

is  Rollins     v.     Shaver     Wagon,  Southern  White  Lead  Co.  v.  Haas, 

etc.,   Co.,    80-380;    Hutchinson     v.  73-399. 
Watkins,  17-475;  Fromme  v.  Jones, 


166  ASSIGNMENTS.  [§  926. 

which  it  can  be  determined  in  all  cases  when  several  in- 
struments are  executed  by  the  debtor  disposing  of  his 
property  for  the  benefit  of  his  creditors,  whether  the 
various  instruments  will  be  treated  as  constituting  a 
single  transaction,  a  disposition  of  all  of  the  debtors' 
property  with  preferences  and  therefore  void  as  a  gen- 
eral assignment  or  not.  In  the  following  cases  it  was 
held  that  under  the  facts  the  instruments  were  to  be 
treated  as  a  general  assignment,  with  preferences,  and 
therefore  void.20 

In  the  following  cases  the  instruments,  though  exe- 
cuted near  the  same  time,  were  held  valid:21  In  deter- 
mining whether  a  disposition  of  property  is  a  general 
assignment,  in  such  cases,  the  intention  of  the  parties 
is  controlling.23  If  the  party  thus  disposing  of  his  prop- 
erty intended  to  make  an  assignment  and  if  the  instru- 
ments were  all  a  part  of  the  same  transaction  they  will 
be  construed  as  constituting  a  general  assignment  and 
being  with  preferences  will  be  void.23  On  the  other 
hand,  if  there  was  no  intention  to  make  an  assignment, 
and  if  the  several  instruments  were  independent  transac- 
tions, they  will  be  held  good.24 

§  926.  Of  defective  assignments. — An  assignment 
for  the  benefit  of  creditors  to  be  valid  must  be  uncondi- 
tional, otherwise  it  will  be  void.25  But  mere  informality 
will  not  defeat  an  assignment.26  And  an  assignment 
making  no  reference  to  real  estate,  but  apparently  de- 

20  Burrows    v.    Lendorff,     8-96;  24  Cleveland,   etc.,   Stove  Co.  v. 
Cole  v.  Dealhman,  13-551;  Van  Pat-  Welson,  80-697;  Loomis  v.  Stewart, 
ten    v.     Burr,     52-518;     Moore   v.  75-387;  Gage  v.  Perry,  69-605;  Far- 
Church,  70-208;  Rock  Island  Plow  well  v.  Jones,  63-316;  Van  Patten, 
Co.    v.   Breese,    83-553;    Falker  v.  v.   Thompson,  73-103;    Bradley   v. 
Linehan,     88-641;     Van    Horn    v.  Hopkins,    67    N.    W.,    261;    In    re 
Smith,  59-142.  Bloomfleld  Woolen  Mills,  70  N.  W., 

21  McCandless   v.    Hazen,    67    N.  115;    Farwell  v.   Cunningham,   86- 
W.,  256;    Clement  v.  Johnson,  85-  67;     Farwell    v.     Weber,     91-122; 
566;     Gage    v.    Parry,    69-605;    Le  Kohn  v.  Clement,  58-589;  Carson  v. 
Moyne  v.  Braden,   87-739.  Byers,  67-606;  Aulman  v.  Aulman, 

22  Letts  v.  McMaster,  83-449.  71-124;  Garrett  v.  Burlington  Plow 

23  Perry  v.  Vezina,  63-25;    Greg-  Co.,  70-697;  Jaffray  v.  Greenbaum. 
Ion  v.  Creglon,  69  N.  W.,  446;  El-  64-492. 

well  v.  Kimball,  69  N.  W.,  286;  25  Sperry  v.  Gallaher,  77-107; 
Bradley  v.  Bailey,  64  N.  W.,  758;  Williams  v.  Gartrell,  4  G.  Gr.,  287. 
Cadwells  Bk.  v.  Crittenden,  66-237.  26  Meeker  v.  Sanders,  6-61. 


§§  927,  928,  929.]  ASSIGNMENTS.  167 

signed  to  be  a  general  assignment  was  held  good  as 
such.27  An  assignment  regular  on  its  face  can  not  be 
collaterally  attacked.28 

§  927.  Of  insolvency. — One  may  be  said  to  be  in- 
solvent so  as  to  justify  the  making  of  an  assignment  for 
the  benefit  of  creditors  if  he  is  unable  to  pay  his  debts 
in  the  usual  course  of  business,  or  to  proceed  in  business 
without  making  a  general  arrangement  with  his  cred- 
itors.29 

§  928.  Of  assignments  by  partners. — Generally 
an  assignment  by  one  partner  of  the  firm's  property  will 
not  be  good  and  will  not  prevent  an  attachment  by  a 
creditor  of  the  firm.30 

When  a  firm  executed  a  conveyance  covering  all  of 
their  property  to  a  trustee  and  authorized  him  to  dispose 
of  the  same  for  the  benefit  of  creditors  and  providing  for 
the  benefit  of  certain  creditors  it  was  held  that  the  con- 
veyance constituted  an  assignment  and  was  invalid  as 
to  creditors  and  would  not  prevail  as  against  an  attach- 
ment levied  on  the  property.31 

§  929.  Of  the  inventory. — The  assignment  must  be 
in  writing  and  set  out  the  name  of  the  assignor,  his  resi- 
dence and  business,  the  name  of  the  assignee,  his  resi- 
dence and  business,  and  in  a  general  way  the  property 
assigned  and  its  location,  and  the  purpose  of  the  assign- 
ment; it  must  be  signed  and  acknowledged  in  the  manner 
prescribed  for  the  execution  and  acknowledgment  of 
deeds,  and  must  be  recorded  in  the  office  of  the 
recorder  of  the  county  where  the  assignor  resides, 
and  in  any  other  county  in  the  State  in  which  he  has 
real  property  to  be  assigned  thereby,  in  the  records  of 
deeds  and  indexed  in  the  proper  index  books.  The  as- 
signor must  annex  to  the  assignment  an  inventory,  under 
oath,  of  his  estate,  real  and  personal,  according  to  the 

27  Loomis  v.  Griffin,  78-482.  Savery  v.  Spaulding,  8-239;  see  In 

28  McCandless  v.    Hazen,   67   N.      re  Bloomfield  Woolen  Mills,  70  N. 
W.,  256.  W.,  115. 

20  State  v.  Cadwell,  79-432;   Me-          so  Loeb  v.  Pierpont,  58-469. 
Candless  v.  Hazen,  67  N.  W.,  256;          si  King  v.  Gustafson,  80-207. 


168  ASSIGNMENTS.  [§§  930,   931. 

best  of  his  knowledge,  and  a  list  of  his  creditors  and  the 
amount  of  their  respective  demands,  but  such  inventory 
will  not  be  conclusive  as  to  the  amount  of  the  debtor's 
estate;  and  such  assignment  will  vest  in  the  assignee 
the  title  to  any  other  property  belonging  to  the  debtor 
at  the  time  of  making  the  assignment,  not  exempt  from 
execution.  As  soon  as  the  assignment  is  recorded  it  must 
be  filed,  with  the  inventory  and  list  of  creditors,  in  the 
office  of  the  clerk  of  the  district  court,  as  must  all  sub- 
sequent papers  connected  with  the  proceedings.32 

The  provision  of  the  law  as  to  recording  is  intended 
for  the  protection  of  subsequent  purchasers  and  when 
an  assignment  was  properly  executed  and  acknowledged 
and  the  assignee  had  consented  to  accept  the  trust  prior 
to  the  levy  of  an  attachment,  it  was  held  that  the  failure 
to  record  it  until  a  few  seconds  after  the  writ  came  into 
the  sheriff's  hands  would  not  invalidate  the  assignment.33 
And  an  assignment  for  the  benefit  of  creditors,  though 
not  acknowledged  or  recorded  takes  precedence  over  a 
judgment  rendered  after  its  execution.34  From  time  to 
time  as  additional  property  may  come  into  the  hands  of 
the  assignee  he  must  file  an  additional  inventory  and 
valuation  of  it  and  may  thereupon  be  required  to  give 
additional  security.35 

§  930.  Of  property  passed  by  the  assignment.— 
The  equity  of  redemption  of  a  mortgagor  of  personal 
property  passes  by  the  assignment.36  All  property  pos- 
sessed by  the  assignor  at  the  time  of  the  assignment 
passes  by  it.37 

§  931.  Of  the  rights  of  the  assignee. — The  as- 
signee and  creditors  have  no  greater  rights  than  the 
assignor  had.38  Nor  has  the  assignee  higher  rights  than 
the  creditors  themselves  would  have  had,  had  the  assign- 
ment not  been  made.39 

32  Code,  Sec.  3072.  Gage  v.  Perry,   69-605;   Prouty  v. 

33  American  v.  Frank,  62-202.  Clark,  73-55. 

**  Munson  v.   Frazer,   73-177.  ss  Meyer  v.  Evans,  66-179;  Schal- 

as  Code,  Sec.  3082.  ler  v.  Wright,  70-667. 

86  Gimble  v.  Ferguson,  58-414.  so  Davenport  Plow  Co.  v.  Lamp., 

37  Goldsmith  v.  Willson,  67-662;  80-722. 


§§  932,  933.]  ASSIGNMENTS.  1G9 

§  932.  Of  the  duty  of  the  assignee. — The  assignee 
must  file  with  the  clerk  of  the  district  court  where  the 
assignor  resides  a  true  and  full  inventory  and  valuation 
of  the  estate  under  oath,  and  must  give  a  bond  to  the 
clerk,  for  the  use  of  the  creditors,  in  double  the  amount 
of  the  inventory  and  valuation,  with  one  or  more  sure- 
ties, to  be  approved  by  said  clerk,  for  the  faithful  per- 
formance of  his  trust  and  may  then  proceed  under  said 
assignment.40 

Taking  possession  of  the  property  is  evidence  of  an 
acceptance  of  the  trust  and  he  may  bring  an  action  in 
relation  to  the  property  before  he  has  filed  his  inventory 
and  bond.41 

If  the  assignee  orally  agrees  to  accept  the  trust  be- 
fore the  assignment  is  executed  and  after  it  is  filed  for 
record  an  attachment  is  levied  on  the  property,  the  as- 
signment will  take  effect  before  the  levy  of  the  attach- 
ment.42 

§  933.  Of  the  notice. — The  assignee  must  at  once 
give  notice  of  the  assignment  by  publication  in  some 
newspaper  in  the  county  for  six  weeks  and  must  mail 
a  notice  to  each  creditor  of  whom  he  is  informed,  directed 
to  his  usual  place  of  residence,  requiring  him  to  present 
his  claim  under  oath  to  him  within  three  months  there- 
after.43 

The  creditor  must  at  his  own  risk  see  to  it  that  his 
claim  reaches  the  assignee  in  time  or  at  least  is  mailed 
in  time  to  reach  him  within  the  time  provided.44  But 
the  creditor  should  file  his  claim  even  if  not  notified.45 
A  creditor  can  not  insist  upon  the  invalidity  of  the  as- 
signment and  at  the  same  time  seek  to  share  under  it.46 
If  the  creditor  has  special  security  he  may  be  required 
by  the  other  creditors  to  exhaust  it  before  claiming  a 
dividend.47 

40  Code,  Sees.  3073,  3082.  74-403;   In  re  Assignment  of  Rea, 

41  Price  v.  Parker,  11-144.  82-231. 

42  Singer  v.  Armstrong,  77-397.  45  Carter  v.  Lee,  82-26. 

«  Code,   Sec.   3074.  45  Loomis  v.  Griffin,  78-482. 

44  Conlee  Lumber  Co.  v.  Meyer,         47  Wurtz  v.  Hart,  13-515. 


170  ASSIGNMENTS  [§§  934,  935,  936. 

The  time  for  filing  claims  begins  to  run  from  the 
date  of  the  first  publication  in  the  newspaper.48 

§  934.  Of  the  filing  of  claims. — All  creditors  must 
file  their  claims  with  the  assignee  within  three  months 
from  the  date  of  the  first  publication  unless  the  court 
shall  extend  the  time,  which  it  may  do  in  its  discretion 
when  peculiar  circumstances  seem  to  justify,  but  in  no 
case  can  time  be  extended  beyond  nine  months.  The 
claims  must  be  clearly  and  distinctly  stated  and  sworn 
to  by  the  claimant  or  by  some  person  acquainted  with  the 
facts.49 

§  935.  Of  claims  filed  after  three  months. — Cred- 
itors may  claim  debts  to  become  due,  as  well  as  debts 
due,  but  on  debts  not  due  a  reasonable  rebate  must  be 
made  if  the  same  do  not  draw  interest,  and  all  creditors 
not  filing  their  claims  within  three  months  from  the  first 
publication  of  notice  will  not  be  permitted  to  participate 
in  the  dividends  until  after  the  payment  in  full  of  all 
claims  presented  within  said  time,  except  as  otherwise 
provided.50  But  an  application  to  have  a  claim  already 
filed  may  be  made  after  the  three  months.51 

And  a  creditor  having  collateral  security  need  not  file 
his  claim  with  the  assignee.52  As  to  priority  of  claims.53 

§  936.    Of  the  assignee's  report  of  creditors. — At 

the  expiration  of  the  three  months  the  assignee  must  re- 
port and  file  with  the  clerk  of  the  court  a  true  and  full 
list,  under  oath,  of  all  such  creditors  of  the  assignor  as 
shall  have  claimed  to  be  such,  with  a  statement  of  their 
claims,  an  affidavit  of  publication  of  the  notice,  and  a 
list  of  the  creditors,  with  their  places  of  residence,  to 
whom  notice  has  been  mailed,  and  the  date  of  such  mail- 
ing.54 The  failure  of  the  assignee  to  perform  his  duty 

«  Scott  v.   Thomas,   62   N.   W.,  "  in  re  Knapp,  70  N.  W.,  626. 

790;   Code,  Sec.  3075.  «  Satterlee  v.  Kirby,  86-518. 

49  Code,  Sec.  3075.  es  Budd  v.  King,  83-97. 

'so  Code,    Sec.    3083;    Carter    v.  **  Code,  Sec.  3076;   Conlee  Lum- 

Lee,   82-26;    In   re   Assignment   of  ber  Co.  v.  Meyer,  74-403;  In  re  As- 

Holt,  45-301;  Conlee  Lumber  Co.  v.  signment  of  Rea,  82-231. 
Meyer,  74-403;  McKinley  v.  Nourse, 
67-118;  see  Code,  Sec.  3075. 


§§  937,  938,  939.]  ASSIGNMENTS.  171 

will  not  be  allowed  to  predjudice  the  rights  of  a  claim- 
ant.55 Under  some  circumstances  one,  by  filing  a  claim 
with  the  assignee,  will  not  be  prevented  from  claiming 
a  preference,  nor  be  estopped  from  disputing  the  validity 
of  the  assignment.56  Section  applied.57 

§  937.  Of  contesting  claims,  —  Any  person  inter: 
ested  may  appear  within  three  months  after  the  filing  of 
the  report  and  contest  the  claim  or  demand  of  any  cred- 
itor by  filing  written  exceptions  thereto  with  the  clerk, 
who  must  cause  notice  thereof  to  be  given  to  such  cred- 
itor, which  must  be  served  as  an  original  notice  and  re- 
turnable at  the  next  term,  when  the  court  will  hear  the 
proofs  and  allegations  of  the  parties,  and  render  such 
a  judgment  as  shall  be  just,  and  it  may  allow  a  trial  by 
a  jury.58  No  pleadings  are  required  in  addition  to  such 
exceptions.59  In  this  proceeding  the  court  may  deter- 
mine the  question  of  priority  among  creditors.60  But  an 
independent  action  in  equity  may  be  brought  to  deter- 
mine questions  of  priority.61  Whether  under  this  section 
a  cause  might,  on  motion,  be  transferred  to  the  equity 
docket  when  equitable  issues  were  involved  is  an  open 
question.62 

§  938,  Of  priority  of  taxes. — Assessments  on  prop- 
erty held  under  assignments  for  the  benefit  of  creditors 
or  taxes  levied  thereon  under  the  laws  of  the  State  or 
the  ordinances  of  a  municipal  corporation  are  entitled 
to  priority  and  to  be  paid  in  full  by  the  assignee  and 
such  claims  need  not  be  filed  with  him.63 

§  939.  Of  preferred  claims. — If  a  claim  is  for  per- 
sonal services  rendered  the  assignor  within  ninety  days 

55  Lacey  v.  Newcomb,  63  N.  W.,         «°  Perry  v.  Murray,  55-416. 

704.  si  Knoxville  Nat'l  B'k  v.  Ham- 

56  Muse     v.     Satterlee,     81-491;      rick,  67-583;    but  see   Mehlhop  v. 
Franzen  v.  Hutchinson,  62  N.  W.,      Ellsworth,  64  N.  W.,  638. 

698.  e2  In  re  Assignment  of  Hobson, 

57  In  re  Cadwells  Bk.,  89-533.  81-392. 

ss  Code,  Sec.  3077.  es  Code,    Sec.    3078;     Brooks    v. 

6»  In  re  Assignment  of  Guyer,  Eighmey,  53-276;  Huiscamp  v.  Al- 

69-585;  In  re  Cadwells  Bk.,  89-  bert,  60-421;  Brown  v.  Kiene,  72- 

533.  342. 


172  ASSIGNMENTS.  [§§    940,   941. 

next  preceding  the  execution  of  the  alignment,  it  must 
be  paid  in  full.64 

§  940.  Of  dividends. — Subject  to  the  provisions  of 
the  preceding  section  and  of  the  following  section  and 
if  no  exception  be  made  to  the  claim  of  any  creditor,  or 
if  the  same  has  been  adjudicated,  the  court  will  order 
the  assignee,  from  time  to  time,  to  make  fair  and  equal 
dividends  among  the  creditors  of  the  assets  in  his  hands 
in  proportion  to  their  claims,  and  as  soon  as  may  be  to 
render  a  final  account  of  his  trust  to  the  court,  which 
will  allow  him  such  compensation  in  the  final  settlement 
as  may  be  considered  just  and  right. 

If,  upon  making  the  final  dividend  to  the  creditors  the 
assignee  shall  be  unable,  after  reasonable  efforts,  to 
ascertain  the  place  of  residence  of  any  creditor,  or  any 
person  authorized  to  receive  the  dividend  due  him,  he 
must  report  such  fact  to  the  court,  with  evidence  show- 
ing diligent  attempts  to  find  such  party,  whereupon  the 
court  may,  in  its  discretion,  order  the  distribution  of  said 
unclaimed  dividend  among  the  other  creditors.65  The 
court  may  direct  the  assignee  as  to  payments  to  be  made 
without  the  formal  application  of  either  party.66 

§  941.  Of  the  settlement. — The  assignee  is  at  all 
times  subject  to  the  supervision  and  orders  of  the  court 
or  judge,  and  he  may  be  compelled  by  citation  or  attach- 
ment to  file  reports  of  his  proceedings  and  of  the  situa- 
tion and  condition  of  the  trust,  and  to  proceed  in  the 
execution  of  his  duties;  and  he  must  dispose  of  all  per- 
sonal property  and  divide  the  proceeds  of  the  same 
among  creditors  as  they  may  be  entitled  thereto  within 
six  months  from  the  date  of  the  assignment,  and  must 
dispose  of  real  estate  within  one  year  from  such  date, 
and  make  full  settlement  by  that  time,  unless  the 
court  or  judge,  for  good  reason  shown,  shall  extend 
the  time  within  which  such  disposition  or  settle- 

«4  Code,  Sec.  3079.  68  In  re  Assignment  of  Hooker, 

es  Code,  Sec.  3079;  In  re  Carter,      75-377. 
67  N.  W.,  239. 


§§  942,   943.]  ASSIGNMENTS.  173 

ment  shall  be  made.67  If  the  assignment  is  claimed  to 
be  fraudulent  by  a  creditor  he  should  attack  it  in  the  as- 
signment proceedings,  and  can  not  levy  an  attachment 
upon  the  property  in  an  action  against  the  assignor.68 
The  assignee  may  not  pay  an  illegal  claim  simply  be- 
cause no  exception  has  been  made  thereto  by  a  creditor.69 
An  assignment  will  not  be  declared  fraudulent  or  void 
for  want  of  any  list  or  inventory.  The  court  or  judge  upon 
the  application  of  the  assignee  or  of  any  creditor  may 
compel  the  appearance  in  person  of  the  debtor  before 
him  to  answer  under  oath  as  to  such  matters  as  may  be 
inquired  of  him,  and  he  may  be  fully  examined  under 
oath  as  to  the  amount  and  situation  of  his  estate,  and  the 
names  of  the  creditors  and  the  amounts  due  to  each,  with 
their  places  of  residence,  and  he  may  be  compelled  to 
deliver  to  the  assignee  any  property  or  estate  embraced 
in  the  assignment.70 

§  942.  Of  sale  of  the  property. — The  assignee  may 
dispose  of  and  sell  all  the  assigned  estate,  real  and  per- 
sonal, which  the  debtor  had  at  the  time  of  the  assign- 
ment, and  may  sue  for  and  recover  in  his  name  every- 
thing belonging  or  appertaining  to  said  estate,  and  gen- 
erally may  do  whatever  the  debtor  might  have  done  in 
the  premises;  but  no  real  estate  can  be  sold  without 
notice  published,  as  in  case  of  sales  on  execution,  unless 
the  court  or  judge  shall  otherwise  order,  and  no  such  sales 
will  be  valid  until  approved  by  such  court  or  judge.71 
And  an  assignee's  sale  is  a  judicial  sale  and  cilts  off  the 
right  of  dower.72 

§  943.  Of  removal  of  the  assignee. — Upon  a  writ- 
ten application  of  two-thirds  of  the  creditors  in  number, 
and  two-thirds  in  amount,  the  court  must  remove  the  as- 
signee and  appoint  in  his  place  a  person  approved  by  the 
creditors  in  the  same  number  and  amount,  and  the  per- 

eT  Code,  Sec.  3080;  McCandless  v.  ™  Code,  Sec.  3081. 

Hazen,  67  N.  W.,  256.  ™  Code,    Sec.     3084;     Lynch     v. 

«s  Hamilton-Brown   Shoe  Co.   v.  Simmons    Hardware    Co.,    80-503; 

Mercer,  84-537.  Waterman  v.  Baldwin,  68-255. 

«»  In  re  Cadwells  Bk.,  89-533.  "  Stidger  v.  Evans,  64-91. 


174  ASSIGNMENTS.  [§  944. 

son  so  removed  must  immediately  turn  over  to  the  clerk 
of  the  district  court,  or  to  any  person  appointed  by  the 
court,  all  moneys  and  property  of  the  estate  in  his  hands. 
If  an  assignee  resides  out  of  the  estate,  or  becomes  insane, 
or  otherwise  incapable  of  discharging  the  trust,  the 
court  may,  upon  ten  days'  notice  to  him  or  his  attorney, 
remove  him  and  appoint  another  in  his  stead.73  And  at- 
torney's fees  in  resisting  a  removal  when  the  motion  was 
overruled  were  held  properly  taxed  to  the  estate.74 

§  944.  Of  the  death  or  misconduct  of  the  as- 
signee,— If  an  assignee  die  before  closing  his  trust,  or 
if  he  fail  or  neglect  for  the  period  of  twenty  days  after 
the  making  of  an  assignment  to  file  an  inventory  and 
valuation,  and  give  bond,  the  district  court,  or  any  judge 
thereof,  of  the  county  where  such  assignment  is  recorded, 
on  the  application  of  any  person  interested,  must  appoint 
some  person  to  execute  the  trust  who  shall  on  giving 
bond  with  sureties,  as  required  of  an  assignee,  have  all 
the  powers  of  the  assignee  first  appointed,  and  be  sub- 
ject to  all  of  the  duties  imposed  by  law.  If  any  bond  or 
surety  is  found  to  be  insufficient,  or  on  complaint  before 
the  court  or  judge,  it  shall  be  made  to  appear  that  any 
assignee  is  guilty  of  wasting  or  misapplying  the  trust 
estate,  such  court  or  judge  may  require  additional  secu- 
rity, may  remove  the  assignee  and  appoint  another  in  his 
place,  and  such  person  so  appointed  on  giving  bond  shall 
execute  such  duties  and  may  demand  and  sue  for  all  the 
estate  in  the  hands  of  the  person  removed,  and  recover 
the  amount  and  value  of  all  moneys  and  property  or 
estate  wasted  and  misapplied  from  such  person  and  his 
sureties.75 

Any  judge  of  the  district  court  in  vacation  has  power 
under  this  chapter  to  issue  citations  and  attachments, 
order  the  sale  of  personal  or  real  property,  and  to  approve 
the  sales  and  deeds  thereof.76 

7«  Code,  Sec.  3085.  75  Code,  Sec.  3086;  Drain  v.  Mick- 

74  in  re  Cadwells  Bk.,  89-533.  el,  8-438. 

TO  Code,  Sec.  3087. 


CHAPTEE  LIX. 

OP  THE  WRIT  OF  CBRTIORARL 

Sec.  945.  When  the  action  will  lie. 

946.  When  the  action  will  not  lie. 

947.  Of  parties  to  the  action. 

948.  What  court  may  grant  the  writ. 

949.  Of  the  proceedings. 

950.  Of  the  petition  for  the  writ,  and  of  notice. 

951.  Of  the  writ,  and  of  service  and  return. 

952.  Of  the  hearing. 

953.  Of  limitation  of  the  action,  etc. 

Section  945.  When  the  action  will  lie. — Certiorari 
is  defined  as  a  writ  issued  from  a  superior  court  directed 
to  one  of  inferior  jurisdiction  commanding  the  latter  to 
certify  and  return  to  the  former  the  record  in  the  par- 
ticular case.1  It  is  granted  whenever  especially  author- 
ized by  law,  and  especially  in  all  cases  when  an  inferior 
tribunal,  board  or  officer  exercising  judicial  functions  is 
alleged  to  have  exceeded  its  proper  jurisdiction,  or  is 
otherwise  acting  illegally,  when,  in  the  judgment  of  the 
court  in  which  the  writ  is  sought,  there  is  no  other  plain, 
speedy  and  adequate  remedy.2  When  the  proceedings 
of  the  inferior  court,  board  or  tribunal  are  irregular  and 
no  plain,  speedy  and  adequate  remedy  at  law  is  provided 
by  appeal,  certiorari  will  lie.3  So  when  the  trial  court 

1  Bouv.  Law  Die.,  14th  Ed.,  pg.  Court,    84-167;    Ind.    Dist    of   Ot- 
251.  tumwa  v.  Taylor,  69  N.  W.,  1009. 

2  Code,  Sec.  4154;  Edgar  v.  Greer,  s  The  M.  &  M.  R.   Co.   v.   Ros- 
14-211;    Royce   v.    Jenney,   50-676;  seau,  8-373;  Davis  County  v.  Horn, 
Smith  v.  Powell,  55-215;  Coburn  v.  4  G-  Greene,  94;  Dubuque  v.  Reb- 
Mahaska  County,  4  G.  Greene,  242;  ™a0n>  l^l  Rockwell   v    Bowers, 

.    TO.     .  .  88-88;   Dunham  v.  Pox,  69  N.  W., 

College  of  Physicians  and  Sur-  436;  '  Rockafellow  v. '  Board  of 
geons  v.  Guilbert,  69  N.  W.,  453;  Equalization,  77-493;  Hamman  v. 
Abney  v.  Clark,  87-727;  Currier  v.  Van  Wagenen,  62  N.  W.,  795;  Cal- 
Mueller,  79-316;  State  v.  District  lanan  v.  Lewis,  79-452. 

175 


176  THE  WRIT  OF  CERTIORARI.  [§   945. 


exceeds  its  jurisdiction  in  acting  upon  a  procedendo  from 
the  supreme  court,  its  proceedings  may  be  corrected  by 
certiorari.4  And  orders  punishing  for  contempt  can  only 
be  taken  to  a  higher  court  by  certiorari.5  The  writ  may 
be  granted  to  test  the  legality  of  the  action  of  township 
trustees  in  calling  an  election  for  the  purpose  of  voting 
on  the  question  of  a  tax  to  aid  in  the  construction  of 
a  railroad.6  So  also  to  determine  the  jurisdiction  of  the 
board  of  supervisors  to  remove  a  county  seat.7  And  the 
action  of  the  board  of  supervisors  in  the  establishment 
of  a  road  may  be  reviewed  by  certiorari  when  it  is  shown 
that  they  exceeded  their  jurisdiction,  or  acted  illegally.8 
The  writ  may  issue  when  the  board  of  directors  of  a  dis- 
trict township  direct  their  secretary  not  to  certify  for 
collection  a  tax  voted  by  the  electors  of  the  district9  And 
it  lies  when  a  board  of  equalization  exceeds  its  powers  by 
raising  an  individual  assessment.10  When  an  assessor 
fails  to  make  on  his  books  the  corrections  ordered  by  the 
township  board  of  equalization,  and  such  books  have 
passed  beyond  his  control,  an  action  of  certiorari  will  lie 
for  their  correction.11  It  lies  to  review  the  action  of  a 
city  council  in  improperly  vacating  streets,12  and  to  test 
the  legality  of  the  action  of  such  a  council  in  condemn- 
ing land  for  a  street.13  And  to  question  the  action  of 
township  trustees  in  consolidating  road  districts.14  And 
where  a  judge,  in  vacation  and  without  notice  to  the 
other  party,  changes  the  conditions  of  a  decree  of  di- 
vorce.15 And  where  a  court  in  an  equitable  action  to 
redeem  from  a  tax  deed  entertained  a  motion  for  a  new 
trial  after  the  cause  was  decided,  and  without  notice  to 

4  Edgar  v.  Greer,  14-211.  10  Royce  v.  Jenney,  50-676;  Polk 

s  The  First  Cong.  Church,  etc.  v.  County    v.    Des     Moines,    70-351; 

City  of  Muscatine,  2-69;  Code,  Sec.  Rockafellow  v.  Board  of  Equaliza- 

4468;     Dunham    v.     State,     6-245;  tion,  77-493. 

Henry  v.  Ellis,  49-205;  Currier  v.  "  Keck  v.  The  Board  of  Super- 
Mueller,  79-316.  visors,  37-547. 

e  Jordan  v.  Hayne,  36-9.  12  Stubenraugh  v.  Neyenesch,  54- 

i  Bennett  v.    Hetherington,    41-  567. 

142;    Herrick  v.  Carpenter,  54-340.  ia  Rockwell  v.  Bowers,  88-88. 

a  McCollister    v.    Shuey,    24-362;  i*  Dunham  v.  Fox,  69  N.  W.,  436. 

McCrory  v.  Griswold,  7-248;   Mof-  is  Hamman  v.  Van  Wagenen,  62 

fitt  v.   Brainard,  92-122.  N.  W.,  795. 

»  Smith  v.  Powell,  55-215. 


§  946.]  THE  WRIT  OF   CERTIOEARI.  177 

the  opposite  party.16  And  to  review  the  proceedings  of 
a  board  of  supervisors  whereby  a  taxpayer's  taxes  are 
wrongfully  increased.17  And  so  in  this  proceeding  a  tax- 
payer having  no  greater  interest  than  any  other  taxpayer 
may  question  the  action  of  the  city  council  in  remitting 
taxes  assessed.18  And  a  resident  of  the  county  appear- 
ing before  the  board  of  supervisors  and  objecting  to  the 
granting  of  a  permit  to  sell  intoxicating  liquors  may  have 
the  proceedings  of  the  board  reviewed  by  certiorari.19 
Certiorari  will  lie  to  correct  an  unwarranted  change  of  a 
court  record,20  and  it  lies  when  a  tax  is  voted  by  a  town- 
ship to  aid  in  the  construction  of  a  county  bridge  and 
the  board  of  supervisors  have  not  first  determined  the 
cost.21  And  under  certain  peculiar  facts  it  was  held  to 
lie.22 

§  946.  When  the  action  will  not  lie. — It  will  not 
lie  if  a  plain,  speedy  and  adequate  remedy  is  afforded 
at  law  by  appeal  or  otherwise,  nor  when  the  party  fails 
to  appeal  in  time,23  nor  will  it  lie  against  a  court  of  pro- 
bate for  refusing  to  correct  a  mistake  in  the  settlement 
of  an  administrator's  account,  as  the  remedy  is  by  ap- 
peal.24 Nor  will  it  lie  generally  when  an  appeal  can  be 
taken.25  It  will  not  lie  to  review  the  question  of  dam- 
ages for  land  taken  for  a  highway.26  Nor  does  it  lie  when 
the  district  court  did  not  exceed  its  jurisdiction  in  enter- 
taining an  action  on  a  school  order  against  several  inde- 
pendent districts  into  which  the  district  issuing  the  order 
had  been  subsequently  divided.27  And  when  the 

is  Callanan  v.  Lewis,  79-452.  v.  Swafford,  5-552;  Spray  v.Thomp- 

17  Goetzman  v.  Whitaker,  81-  son,  9-40;  Davis  County  v.  Horn,  4 

527.  G.  Greene,  94;  Sunberg  v.  The  Dist. 

is  Collins  v.  Davis,  57-256.  Ot,  etc.,  61-597;  Flagg  v.  Parker, 

is  Darling  v.  Boesch,  67-702,  and  11-18;  State  v.  Wilson,  12-424; 

see  Welch  v.  Board  of  Supervisors,  Ransom      v.      Cummins,      66-137; 

23-199;     Smith    v.    Yoram,    37-89;  State    v.    Schmidtz,    65-556;      Ind. 

Iowa  News  Co.  v.  Harris,  62-501.  School  Dist.   v.    Dist.    Ct,   48-182; 

20  Code,  Sec.  4154;  Hawkeye  Ins.  Brockman  v.  Creston,  79-587. 

Co.  v.  Duffee,  67-175.  24  O'Hare  v.  Hempstead,  etc.,  21- 

21  Retz  v.    Tannehill,   69-476.  33. 

22  Rowley  v.  Baugh,  33-201;  State  25  Spray  v.  Thompson,  9-40. 
v.  Fidelity  &  Casualty  Co.,  77-648.  26  McCrory  v.  Griswold,  7-248. 

23  McCrory    v.    Griswold,  7-248;  27  The  Ind.   Dist.   of  Asbury   v. 
Meyers  v.   Simms,  4-500;   McCune  The  Dist.  Court,  etc.,  48-182. 


178  THE  WBIT  OF   CERTIORARI.  [§  947. 

act  sought  to  be  reviewed  is  of  a  legislative  or  discre- 
tionary, rather  than  of  a  judicial  character,  the  action 
will  not  lie.28  Questions  of  fact  can  not  be  reviewed  in 
this  manner.29  Nor  can  a  party  thus  review  some  erro- 
neous ruling  of  an  inferior  tribunal.30  The  finding  of  a 
board  of  supervisors  on  questions  of  fact  arising  out  of 
applications  to  sell  intoxicating  liquors  can  not  be  re- 
viewed in  this  manner.31  It  will  not  lie  to  review  the 
action  of  a  city  board  of  equalization  in  reducing  the 
assessment  of  the  property  of  the  city  water  works  com- 
pany.32 And  where  the  question  sought  to  be  reviewed 
is  only  the  amount  of  damages  or  the  failure  to  make 
an  award  on  the  proper  day,  it  will  not  lie.33 

§  947.  Of  parties  to  the  action. — One  who  has  no 
specific  right  which  is  violated  by  a  city  ordinance,  can 
not  contest  its  validity  by  certiorari  proceeding.34  But 
it  is  held  that  one  taxpayer  may  thus  have  reviewed  the 
action  of  the  city  council  in  remitting  taxes  assessed 
against  another  taxpayer,  although  such  plaintiff  has 
no  greater  interest  in  the  matter  than  any  other  tax- 
payer.35 And  a  taxpayer  may  maintain  the  proceeding 
to  review  the  action  of  the  board  of  supervisors  whereby 
his  taxes  are  increased.36  And  when  the  remedy  is 
sought  for  the  purpose  of  correcting  proceedings  to 
assess  damages  resulting  from  the  establishment  of  a 
road,  several  owners  of  distinct  pieces  of  land  can  not 
join  as  plaintiffs.37  So  when  taxes  have  been  levied  in 
different  townships  in  aid  of  a  railroad,  the  levy  in  each 
township  must  be  treated  as  distinct,  and  taxpayers  of 
different  townships  can  not  join  as  plaintiffs  in  this 
action  to  test  the  validity  of  such  taxes.38  The  officer 
against  whom  the  writ  issues  should  be  made  a  defend- 

28  iske  v.   City   of   Newton,   54-  32  polk   County  v.   City   of  Des 

586;    Smith  v.  Board  of  Supervis-  Moines,   70-351. 

ors,    30-531;     Iowa    Eclectic    Med.  33  Cedar  Rapids,  I.  F.  &  N.  W. 

Coll.  Assn.  v.  Schrader,  87-659.  R.  Co.  v.  Whelan,  64-694. 

2»Tiedt    v.    Oarstenson,   61-334;  s*  iske  v.   City  of   Newton,    54- 

Hildreth  v.  Crawford,  65-339;  Bar-  586. 

ling  v.  Boesch,  67-702.  as  Collins  v.  Davis,  57-256. 

so  O'Hare  v.  Hempstead,  21-33.  as  Goetzman  v.  Whitakar,  81-527. 

si  Darling  v.  Boesch,  67-702;  see  ST  Chambers  v.  Lewis,  9-583. 

Forbes  v.  Delashmutt,  68-166.  ss  Woodward  v.  Gibbs,  61-398. 


§§  948,  949.]  THE  WKIT  OF  CEBTIORABI.  179 

ant,  naming  him;  it  is  not  sufficient  to  merely  state  his 
official  title.39  Under  the  law  authorizing  boards  of  su- 
pervisors to  issue  permits  to  sell  intoxicating  liquors,  any 
citizen  if  a  party  may  have  its  action  reviewed  by  certio- 
rari.49  But  it  will  not  lie  at  the  instance  of  one  in  no 
way  affected  by  the  proceedings  in  which  the  writ  is 
sought.41  But  in  a  proceeding  to  review  the  action  of  a 
board  of  supervisors  in  assessing  the  costs  of  construct- 
ing a  levee  upon  adjoining  land,  different  property  own- 
ers, whose  property  is  subject  to  the  assessment,  may 
join  as  plaintiffs.42 

§  948.  What  court  may  grant  the  writ.  —  The  writ 
may  be  granted  by  the  district  court,  or  by  the  judge 
thereof.  But  if  the  writ  is  to  be  directed  to  such  court, 
or  judge,  or  to  the  superior  court  or  its  judge,  then  it 
must  be  granted  by  the  supreme  court,  or  by  a  judge 
thereof,  and  must  command  the  defendant  therein  to  cer- 
tify fully  to  the  court  issuing  the  writ,  at  a  time  and  place 
specified  therein,  a  transcript  of  the  records  and  proceed- 
ings, as  well  as  the  facts  in  the  case,  describing  or  refer- 
ring to  them,  or  any  of  them,  with  convenient  certainty, 
and  also  make  due  return  of  the  writ,  and  when  allowed 
by  a  court  it  must  be  issued  by  the  clerk  thereof  and 
under  its  seal.43  Under  the  revision  of  1860  the  circuit 
court  did  not  have  jurisdiction  in  certiorari  cases.44  But 
this  was  afterward  conferred  on  it.45 

§  949.  Of  the  proceedings.—  The  action  must  be 
prosecuted  by  ordinary  proceedings  so  far  as  applicable, 
and  an  appeal  lies  from  the  judgment  of  the  court  to  the 
supreme  court  as  in  other  ordinary  actions,  and  the  rec- 
ord is  to  be  prepared  in  the  same  manner,46  and  the  find- 
ings of  the  court  have  the  same  presumptions  in  their 
favor.47  Under  the  revision  it  was  a  special  proceeding.48 

sa  Keck  v.  Board  of  Supervisors,         "Thompson     v.     Reed,    29-117- 
37-547;   Chambers  v.  Lewis,  9-583.      Hunt  v    Free    29  156 


.reene, 

94  «  Code,  Sec.  4161. 

42  Richman  v.  Board,  etc.,  70-627.  47  Remey  v.  Board  of  Equaliza- 

"Code,  Sec.  4155;  State  v.  Dis-  tion,  80-470. 

trict  Court,  84-167.  *s  Revision,     Sees.     2606,     2607; 


180  THE  WRIT  OF  CERTIOKABI.  [§  950. 

§  950.    Of  the  petition  for  the  writ  and  of  notice. 

— The  petition  for  the  writ  must  state  facts  constituting 
a  case  wherein  the  writ  may  issue,  and  must  be  verified 
by  affidavit;  and  the  court,  or  judge,  before  issuing  the 
writ,  may  require  notice  of  the  application  to  be  given 
the  adverse  party,  or  may  grant  the  writ  without  notice. 
If  a  stay  of  proceedings  is  sought  the  writ  can  only  be 
granted  upon  reasonable  notice49  of  the  time,  place,  and 
court,  or  judge  before  whom  the  application  will  be 
made,  which  must  be  fixed  by  the  court  or  judge  to  whom 
the  application  is  presented,  who  must  require  a  bond 
and  fix  the  penalty  and  conditions  thereof;  the  sureties 
may  be  approved  by  the  court  or  judge  granting,  or  the 
clerk  issuing,  the  writ,  and  which  bond  must  be  filed  with 
the  clerk,50  and  when  proceedings  are  had  under  section 
4156  of  the  code  the  remedy  is  full  and  complete,  and  the 
proceedings  of  the  inferior  tribunal  may  be  stayed  when 
the  writ  is  applied  for.51  The  petition  for  the  writ  may 
be  in  the  following  form: 

FORM  OF  PETITION  FOR  WRIT  OF  CERTIORARL 

Title, 
Venue, 

The  plaintiff  states: 

That  the  above  named  defendants  are  members  of  the  board  of 

supervisors  of county,  Iowa.  That  said  board  has  exceeded  its 

jurisdiction  in  this,  that  on  the  day  of  ,  18 — ,  at  the 

session  an  order  was  made  by  said  board  establishing  a  certain 

county  road  as  follows  (here  describe  road  as  in  order).  That  said  road 
established  as  aforesaid  passes  over  and  across  plaintiffs'  land  as  fol- 
lows, viz.:  (describe  the  premises  and  the  location  of  the  road  over 
them).  That  no  notice  whatever  was  given  of  the  time  when  a  pe- 
tition for  the  establishment  of  said  road  would  be  presented;  that  no 
viewer  was  appointed  to  examine  and  report  on  said  proposed  road 
(here  state  any  other  illegalities  complained  of).  Plaintiff  further 
states  that  said  board  has  ordered  that  said  road  b~e  opened  and  worked 
(or  as  the  fact  may  be). 

That  plaintiff  has  no  plain,  speedy  and  adequate  remedy  for  the 
injury  done  him  by  said  illegal  act  except  by  certiorari.  Wherefore 
he  prays  that  a  writ  of  certiorari  issue  from  this  court  commanding 

Thompson  v.  Reed,  29-118;    Ains-         »o  Code,  Sees.  4156,  4157. 
worth  v.  House.  31-504.  si  Stubenraugh  v.  Neyenesch  54- 

«»  Iske  v.  City  of  Newton,  54-586.      571. 


§951.]  THE  WEIT  OT  CEBTIOBABI.  181 

the  said  defendants  herein  to  certify  fully  to  this  court  a  transcript 
of  the  records  and  proceedings  in  reference  to  the  establishment  of  said 
road,  with  all  the  facts  relating  to  the  same,  and  that  said  proceedings 
may  be  annulled,  set  aside  and  held  for  naught,  and  that  he  have 
judgment  for  costs. 

,  attorney  for  plaintiff. 

(Add  verification.) 

The  notice  of  the  application  may  be  in  the  following 
form: 

FORM  OF  NOTICE  OF  APPLICATION  FOR  WRIT. 

Title,  | 
Venue,  J 

You  are  hereby  notified  that will  make  application  to  (name 

of  court  or  judge),  at o'clock  A.  M.,  on  the day  of , 

18 — ,   at ,   in  county,   Iowa,   for  a  writ  of  certiorari  to 

remove  into  said  court  the  records  and  proceedings  in  the  above  en- 
titled cause  (here  set  out  the  proceedings  sought  to  be  removed),  at 
which  time  and  place  you  can  attend,  if  you  desire. 

,  attorney  for  plaintiff. 

§  951.     Of  the  writ,  and  of  service  and  return.— 

The  writ  is  issued  by  the  clerk,  under  the  seal  of  the 
court,  and  may  be  in  the  following  form: 

FORM  OF  WRIT  OF  CERTIORARI. 

To  (names  of  all  defendants,  as  in  petition),  greeting: 

Whereas,  on  the  petition  of ,  it  has  been  made  to  appear  to 

the  (name  of  court  or  judge)  that  you  have  exceeded  your  jurisdiction 

as  the  (board  of  supervisors,  or  as  the  case  may  be)  of county, 

Iowa,  and  are  proceeding  illegally  in  the  matter  of  the  establishment 
of  (a  road  or  other  proceeding,  as  the  case  may  be).  You  are,  there- 
fore, hereby  commanded  that  you  certify  and  return  fully  to  our  said 

court,  on  the  day  of  ,  18 — ,  a  transcript  of  the  records 

and  proceedings,  as  well  as  the  facts  in  the  case  (describing  them,  or 
any  of  them,  as  the  case  may  be,  with  convenient  certainty)  of  the 
(name  and  describe  the  case),  as  fully  as  the  same  are  now  before 
you;  and  have  you  then  and  there  this  writ. 

Witness  ,  clerk  of  said  court,  with  the  seal  thereof  hereto 

affixed,  this  day  of ,  18 — . 

[Seal.]  ,  clerk,  etc. 

The  writ  must  be  served  and  proof  of  service  made,  in 
the  same  manner  as  an  original  notice  in  an  action,  ex- 
cept that  the  original  must  be  left  with  the  defendant, 


182  THE  WRIT  OF  CEBTIORABI.  [§  952. 

and  the  return  or  proof  of  service  made  upon  a  copy.52 
And  if  the  return  to  the  writ  is  defective  the  court  may 
order  a  further  return  to  be  made,  and  may  compel  obedi- 
ence to  the  writ  and  to  such  further  order  by  attachment, 
if  necessary.53  The  appearance  of  a  party  to  the  writ 
cures  any  defect  in  the  writ  or  the  service  of  it.54  The 
defendant  should  certify  to  the  court  issuing  the  writ  a 
full  and  perfect  transcript  of  the  record  and  proceedings 
in  the  case.  . 

§  952.  Of  the  hearing. — When  a  full  return  has 
been  made  the  court  must  proceed  to  hear  the  parties,  or 
such  of  them  as  may  attend  for  that  purpose,  on  the  rec- 
ords, proceedings  and  facts  as  certified,  and  such  other 
testimony,  oral  or  written,  as  either  party  may  introduce 
pertinent  to  the  issue,  and  may  give  judgment  affirming 
or  annulling  the  proceedings  in  whole  or  in  part,  or,  in 
its  discretion,  correcting  the  same  and  prescribing  the 
manner  in  which  the  defendant  shall  further  proceed.55 
And  though  a  writ  be  defective  in  not  ordering  the  facts 
to  be  certified,  yet,  if  they  are  in  fact  certified,  a  motion 
to  quash  the  writ  for  the  defect  will  not  lie.56 

Under  the  revision  it  was  held  that  trial  in  this  pro- 
ceeding, after  the  writ  had  been  returned,  must  be  had 
on  the  record  alone  and  that  evidence  aliunde  was  not 
admissible.57  Under  the  law  now  all  facts  relating  to 
the  matter,  whether  of  record  or  not,  may  be  certified  and 
oral  evidence  introduced  on  the  hearing.58  But  the  court 
will  not  consider  errors  or  irregularities  relating  to,  or 
dependent  on  facts,  not  stated  in  the  petition,  nor  will 
allegations  without  a  return  to  sustain  them  be  ground 
for  interference.59  The  supreme  court  may,  in  this  action, 
modify  the  judgment  of  the  court  below  rendered  in  a 
proceeding  for  contempt.60  And  in  a  proceeding  in  cer- 

52  Code,  Sec.  4158.  57  Smith  v.  Board  of  Supervisors, 

03  Code,  Sec.  4159.  30-531;    Jordan  v.  Hayne,  36-9. 

oiRemey  v.  Board  of  Bqualiza-  os  Code,  Sec.  4160;  Tiedt  v.  Cars- 

tion,  80-470.  tensen,  61-334. 

OB  Code,  Sec.  4160;  McKinney  v.  oa  Everett  v.  The  C.,  R.  &  M.  R. 

Baker,  69  N.  W.,  683.  Ry.  Co.,  28-417;  Jordan  v.  Hayne, 

56  Richman  v.  Board,  70-627.  36-9,  and  15. 

«o  State  v.  Myers,  44-580. 


§  953.]  THE  WKIT  OF  CEKTIOEAEI.  183 

tiorari  as  to  the  legality  of  the  action  of  the  board  of 
supervisors  in  establishing  a  road,  notice  of  appeal  can 
not  be  served  on  the  county  auditor.61 

As  to  the  sufficiency  of  the  return  in  particular  cases.63 
It  is  held  that  parties  may  waive  the  writ  and  submit 
themselves  to  the  jurisdiction  of  the  court.63  The  audit- 
or's cerificate  touching  the  receipt  of  certain  evidence  by 
the  board  of  supervisors  will  not  overturn  its  action.64 
The  supreme  court  can  not  inquire  whether  the  evidence 
before  the  lower  court  justified  the  order  and  thus  review 
its  decision.65  Judgment  on  the  bond  provided  in  this 
proceeding  can  not  be  summarily  entered.66 

§  953.  Of  limitation  of  the  action,  etc, — No  writ 
can  be  granted  after  twelve  months  have  elapsed  from 
the  time  the  inferior  court,  tribunal,  board  or  officer  has, 
as  alleged,  exceeded  its  proper  jurisdiction,  or  has  other- 
wise acted  illegally.67  But  a  writ  of  certiorari  to  the 
board  of  supervisors  directing  them  to  certify  up  a  tran- 
script of  their  proceedings  upon  the  question  of  the  re- 
moval of  a  county  seat  is  not  barred  until  twelve  months 
after  the  adoption  of  the  order  submitting  the  question 
to  a  vote.68  When  a  petition  for  certiorari  was  filed  with 
due  diligence,  but  the  writ  was  delayed  on  account  of  the 
disqualification  of  the  judge  to  take  cognizance  of  the 
case,  it  was  held  the  plaintiffs  did  not  lose  their  rights 
by  reason  of  the  delay.69  If  issued  in  time  the  writ  is 
not  required  to  be  returned  within  the  twelve  months.70 

61  Polk  v.  Foster,  71-26.  er  Code,    Sec.   4162;    Jamison    v. 

62  Stone  v. Miller,  60-243;  Schroe-      The  Board,  etc.,  47-388;     Shepard 
der  v.  Carey,  11-555.  v.  Supervisors,  72-258. 

ea  Groves  v.  Richmond,  56-69.  68  Jamison   v.    The   Board,   etc., 

6*  Woolsey  v.  Board,  etc.,  32-130.  47-388. 

es  Wise  v.  Chancy,  67-73.  69  Bush  v.  Dubuque,  69-233. 

ee  Smith  v.  Bissell,  2  G.  Greene,  TO  Remey  v.  Board  of  Equaliza- 

379.  tion,  80-470. 


CHAPTER 

OF  CHATTEL  MORTGAGES. 

Sec.  954.  Of  mortgages  on  after-acquired  property. 

955.  Of  mortgages  on  growing  crops  and  crops  to  be  grown. 

956.  Of  mortgages  of  book  accounts. 

957.  Description  of  the  property  other  than  book  accounts. 

958.  Of  the  effect  of  retention  of  possession  by  the  mortgagor  and 

of  sale  by  him  of  the  property. 

959.  Of  the  effect  of  agreements  not  to  record. 

960.  Of  questions  of  priority  over  landlord's  liens. 

961.  Of  priority  of  the  lien  generally. 

962.  Of  mortgages  between  husband  and  wife. 

963.  When  an  instrument  is  a  chattel  mortgage  and  when  an  as- 

signment for  the  benefit  of  creditors. 

964.  Of  agreements  between  mortgagor  and  mortgagee  regarding 

the  time  of  sale. 

965.  Of  second  mortgages. 

966.  Of  protection  to  diligent  creditors. 

967.  Of  action  to  recover  property  mortgaged — Actions  at  law. 

968.  Of  the  mortgagor's  interest  in  the  property  before  sale. 

969.  Of  the  mortgagor's  interest  after  sale. 

970.  Of  the  interest  of  the  mortgagee  in  the  property. 

971.  Of  equitable  mortgages. 

972.  When  Valid  against  existing  creditors,  etc. 

973.  Of  waiver  of  the  lien  and  of  estoppel. 

974.  Of  the  enforcement  of  foreign  mortgages. 

975.  Of  foreclosure  by  notice  and  sale. 

976.  Of  the  notice  in  such  cases. 

977.  Of  service  of  the  notice. 

978.  Of  parties  to  the  proceedings. 

979.  Of  the  sale  and  of  attorneys'  fees. 

980.  Perpetuating  evidence  of  the  sale,  etc. 

981.  Of  the  validity  of  the  sale. 

982.  Of  the  power  of  sale. 

983.  Of  the  remedy,  costs,  etc. 

984.  Of  injunction  and  transfer  to  the  district  court 

985.  Of  proceedings  in  the  district  court. 

986.  Relating  to  levies  on  mortgaged  personal  property. 

987.  Of  the  sale  of  chattel  mortgage  property  which  has  been 

pledged  as  collateral. 

184 


§§  954,  955.]  CHATTEL   MOKTGAGES.  185 

Section  954.  Of  mortgages  on  after-acquired  prop- 
erty.1— The  law  is  now  well  settled  that  one  may  mort- 
gage property  to  be  acquired  in  the  future.2  Especially  is 
this  true  where  the  property  is  in  existence  at  the  time  the 
mortgage  is  executed.3  Where  a  mortgage  on  a  stock  of 
goods  provides  for  a  lien  on  the  goods  which  may  be  pur- 
chased and  added  to  the  stock,  it  is  good.4  But  a  mort- 
gage will  not  be  held  to  cover  after-acquired  goods  unless 
it  is  expressly  provided  for  in  the  mortgage.5 

§  955.  Of  mortgages  on  growing  crops  and  crops 
to  be  grown.  —  Where  a  mortgage,  after  describing  cer- 
tain property,  included  "all  crops  to  be  grown  or  raised" 
by  the  mortgagor  in  a  certain  year,  on  land  described 
therein,  it  was  held  that  it  was  good  as  against  a  creditor 
of  the  mortgagor,  and  that  it  attached  to  the  property 
when  it  came  into  existence,  and  that  the  record  of  the 
mortgage  imparted  notice.6  But  a  mortgage  on  crops  to 
be  grown  or  planted,  in  order  to  be  regarded  as  valid 
against  third  parties,  must  state  the  year  or  term  in  which 
they  are  to  be  grown.7  But  a  mortgage  on  crops  "grow- 
ing" is  good.8  If  the  owner  of  land  executes  a  mortgage 
on  crops  afterwards  to  be  grown,  and  thereafter,  and  be- 
fore planting  the  crop  lets  the  land  to  a  tenant  who  puts  in 
a  crop,  the-  mortgage  by  the  lessor  will  not  attach  to  the 
crop  planted  by  the  lessee.9  The  landlord's  share  of  crops 
to  be  grown  under  a  lease  will  be  bound  by  a  chattel  mort- 
gage from  the  time  such  share  is  set  apart,  and  such  a 

iAs    to    mortgages    on   the    in-  B  Philips  v.  Both,  58-499;  Lormer 

crease  of  stock  see  Thompson  v.  v.    Allyn,    64-725;      McArthur     v. 

Anderson,  63  N.  W.,  355.  Garman,   71-34;    Iowa   State  Nat'l 

2  Scharfenburg  v.  Bishop,  35-60;  Bk.  v.  Taylor,  67  N.  W.,  677. 

Fejavary   v.   Broesch,   52-88;    Ste-  o  Wheeler  v.  Becker,  68-723;  see 

phen   v.    Pence,    56-257;    Beall    v.  Muir  v.  Blake,  57-662;     Wright  v. 

White,   94   U.    S.,    382;    Arques   v.  Dickey  Co.,  83-332. 

Wasson,  51  Cal.,  620;     Hughes  v.  7  Pennington    v.     Jones,     57-37; 

Wheeler,  66-641;    Brown  v.  Allen,  Muir   v.    Blake,   57-662;    Hayes   v. 

35-306;    Holley  v.  Brown,  14  Conn.,  Wilcox,   61-732;    Crary  v.   Currier, 

255;     Abbott  v.   Goodwin,  20  Me.,  62-535;  Van  Patten  v.  Leonard,  55- 

408;    Pierce  v.   Emory,   32   N.    H.,  520;     Stephens     v.    Pence,    56-257; 

484,  and  see  Dunham  v.  Isett,  15-  Rowley   v.   Bartholomew,     37-374; 

284,  and  cases  cited;    Thompson  v.  Eggert  v.  White,  59-464. 

Anderson,  63  N.  W.,  355.  s  Luce  v.  Morehead,  73-498. 

s  Hushes  v.  Wheeler,  66-641.  9  Knaebel  v.  Wilson,  92-536. 

*  Philips  v.  Both,  58-499. 


186  CHATTEL  MOBTGAGES.         [§§  956,  957. 

mortgage  will  be  prior  to  the  claims  of  an  attaching 
creditor  who  garnishes  the  tenant  after  the  execution  of 
the  mortgage.10 

§  956.  Of  mortgages  of  book  accounts. — Book  ac- 
counts may  be  mortgaged.11  But  such  a  mortgage  which 
fails  to  show  the  county  or  state  in  which  the  accounts 
are  to  be  earned,  or  the  person  against  whom  they  might 
accrue  will  not  create  a  lien  on  unearned  accounts.12  So 
a  mortgage  on  "our  accounts"  is  not  good  as  against  third 
parties  without  notice.13  Nor  is  one  which  describes  the 
accounts  as  "book  accounts"  or  "book  accounts  for  goods 
sold."14  But  a  description  of  "all  books  of  account  and 
accounts  and  notes  contracted  and  to  be  contracted  from 
the  sale  of  merchandise"  was  held  good.15  And  while  a 
description  in  a  chattel  mortgage  of  notes  and  book  ac- 
counts may  be  insufficient  as  to  a  third  person  without 
notice,  it  may  be  good  as  between  the  parties  thereto, 
and  in  such  a  case  if  the  mortgagee,  before  being  served 
with  a  notice  of  garnishment,  has  taken  possession  of  the 
property  and  caused  it  to  be  sold  and  has  bid  it  in  the 
defective  description  is  cured  as  against  the  party  gar- 
nisheeing.16 

§  957.  Description  of  the  property  other  than  book 
accounts.— The  property  sought  to  be  covered  by  the  mort- 
gage should  be  as  accurately  and  specifically  described  as 
its  nature  will  permit,  and  to  defeat  a  subsequent  sale  of 
chattels,  the  description  in  the  mortgage  must  be  so  spe- 
cific as  to  enable  third  persons,  who  have  examined  the 
record  and  made  such  inquiries  as  the  instrument  itself 
suggests,  to  identify  the  property  covered  by  the  mort- 
gage.17 The  sufficiency  of  the  description  of  property  in 

10  Riddle  v.  Dow,  66  N.  W.,  1066.         is  Kelley  v.  Andrews,  71  N.  W., 

11  Sandwich  Mfg.  Co.  v.  Robin-      251. 

son,  83-567;  Davis  v.  Pitcher,  65  N.  IT  Winter    v.    Landphere,  45-73; 

W./1005;   Lawrence  v.  McKenzie,  Smith  v.  McLean,  24-322;   Rhuta- 

88-432.  sel  v.   Stephens,  68-627;    Wells   v. 

12  Sandwich  Mfg.  Co.  v.  Robin-  Willcox,  68-708;  Wheeler  v.  Beck- 
son,  83-567.  er,  68-723;  Hayes  v.  Wilcox,  61-732; 

is  Sperry  v.  Clark,  76-503.  Peterson  v.  Foil,  67-402 ;    Yount  v. 

i*  Laurence  v.  McKenzie,  88-432.  Harvey,     55-421;     Pennington     v. 

is  Davis   v.   Pitcher,   65   N.   W.,  Jones,  57-37;  Eggert  v.  White,  59- 

1005  464;    Broch  v.   Barr,   70-399;    Gil- 


§  958.  ]  CHATTEL   MORTGAGES.  187 

a  chattel  mortgage  has  been  frequently  passed  upon  by 
our  supreme  court;  an  extended  review  of  these  cases  is 
not  necessary.  In  addition  to  those  heretofore  referred  to, 
the  following  cases  will  be  found  to  present  the  law  on 
this  subject.18 

§  958.  Of  the  effect  of  retention,  of  possession  by 
the  mortgagor  and  of  sale  by  him  of  the  property. — A 
chattel  mortgage  providing  that  the  mortgagor  may  re- 
tain possession  and  dispose  of  the  property  by  sale,  is  not 
fraudulent19  In  case  of  a  foreign  mortgage  retention  by 
a  mortgagor  of  possession  beyond  the  time  stipulated  in 
the  mortgage  may  render  it  fraudulent  and  void  as  to  sub- 
sequent purchasers,  if  such  retention  is  with  the  consent 
of  the  mortgagee.20  A  provision  in  a  mortgage  for  the 
mortgagor  to  retain  possession  of  the  goods  and  sell  them, 
receiving  the  money  therefor,  and  after  paying  his  own 
expenses  and  the  expenses  of  sale  to  pay  the  proceeds  to 
the  bankers  of  the  creditor  does  not  render  it  void.21  But 
facts  and  circumstances  showing  that  the  retention  is  for 
the  benefit  of  the  mortgagor  alone,  will  justify  a  jury  in 
finding  it  not  bona  fide.22  If  there  is  no  actual  intent  to 
defraud,  a  chattel  mortgage  is  not  rendered  per  se  fraud- 
ulent by  an  agreement  of  the  parties  that  the  mortgagor 

Christ   v.  McGee,   67  N.   W.,   392;  bridge,  74-550;   Norris  v.  Hix,  74- 

Andregg     v.      Brunskill,     87-351;  524;    Luce    v.    Moorehead,   73-498; 

Sandwich    Mfg.    Co.    v.    Robinson,  Towslee  v.  Russell,  76-525;  Barrett 

83-567;    Taylor  v.   Gilbert,   92-587;  v.  Finch,  76-553;  Cook  v.  Gilchrist, 

King   v.    Howell,    62   N.   W.,   738;  82-277;    Kern    v.    Wilson,    82-407; 

City  Bk.  v.  Ratkey,  79-215;   Shell-  Chapin  v.  Garretson,  85-377;  Myers 

hammer  v.  Jones,  87-520;  Citizens'  v.   Snyder,   64  N.   W.,   771;    John- 

Nat'l  Bk.  v.  Johnson,  79-290;  Ken-  ston   v.    Rider,    84-50;    Kneller   v. 

yon  v.  Tramel,  71-693;  Iowa  State  Kneller,    86-417;     Funk    v.    Mer. 

Nat'l  Bk.  v.  Taylor,  67  N.  W.,  677;  Trust  Co.,  89-264. 

Haller    v.    Parrott,    82-42;    Piano  i»  Torbet     v.     Hayden,     11-435; 

Mfg.   Co.   v.   Griffith,   75-102;    Me-  Kuhn  v.  Graves,  9-303;   Campbell 

Garry  &  Brown  v.  McDonnell,  82-  v.    Leonard,    11-489;      Hughes    v. 

732;   Haller  v.  Parrott,  82-42;  Ma-  Cory,  20-399;  Jessup  v.  Bridge,  11- 

girl  v.  Magirl,  89-342.  572;     Frnmme    v.    Jones,    13-474; 

is  Caldwell    v.    Trowbridge,    68-  Smith  v.  McLean,  24-322;    Jordan 

150;  Ivins  v.  Hines,  45-73;  Everett  v.  Lendrum,  55-478. 

v.  Brown,  64-420;  Barr  v.  Cannon,  20  Simms  v.  McKee,  25-341. 

69-20;    Ormsby   v.    Nolan,    69-130;  21  Adler      v.       Clafflin,       17-89; 

Kenyon  v.  Tramel,  71-693;  Warner  Hughes  v.  Cory,  20-399;   Meyer  v. 

v.    Wilson,    73-719;     State    Bk.    v.  Gage,   65-606;    Starker  v.    McCosh 

Felt,  68  N.  W.,  818;  King  v.  How-  Iron  &  Steel  Co.,  62  N.  W.,  848. 

ell,  62  N.  W.,  738;  Piano  Mfg.  Co.  22  Wilhelmi  v.  Leonard,  13-330. 
v.  Griffith,  75-102;  Clapp  v.  Trow- 


188  CHATTEL    MORTGAGES.  [§  959. 

might  retain  possession  and  dispose  of  the  property  in  the 
ordinary  course  of  trade.23  And  the  reservation  in  a  mort- 
gage of  power  to  sell  in  the  ordinary  course  of  trade  does 
not  invalidate  it.24  Nor  will  the  fact  that  a  mortgage  does 
not  require  the  mortgagor  to  account  for  the  proceeds  of 
sales  of  the  property  affect  its  validity,25  and  the  retain- 
ing possession  by  the  mortgagor  and  reserving  the  right 
to  sell  the  property  in  the  ordinary  course  of  trade  apply- 
ing the  proceeds  to  his  own  use  will  not  render  the  mort- 
gage fraudulent26  A  provision  in  a  mortgage  that  the 
mortgagee  will  not  take  possession  until  default,  unless 
necessary  for  protection  against  other  creditors,  is  not 
per  se  fraudulent.27 

So  a  mortgage  given  to  trustees  upon  a  stock  of  goods  to 
secure  certain  creditors,  is  not  void  because  it  provides  for 
an  extension  of  the  time  of  the  indebtedness,  and  that  the 
mortgagor  shall  have  the  right  to  retain  possession  and 
carry  on  the  business  in  the  usual  retail  way  for  a  certain 
time,  paying  the  costs  and  expenses  of  running  the  busi- 
ness, and  keeping  up  the  stock  to  what  it  was  when  the 
mortgage  was  given.28 

§  959.  Of  the  effect  of  agreements  not  to  record. 
—If  a  mortgage  is  witheld  from  record  for  the  purpose  of 
enabling  the  mortgagor  to  obtain  credit  it  is  invalid  as 
against  creditors  who  became  such  while  the  mortgage 
was  thus  withheld.29 

But  a  mere  failure  to  record  a  mortgage  will  not  render 
it  fraudulent  as  to  subsequent  mortgagees  in  the  absence 
of  any  showing  that  it  was  withheld  from  record  by  virtue 
of  an  agreement  between  the  parties  or  at  the  request  of 
the  mortgagor.30 

23  Sperry  v.  Etheridge,  63-543;  27  Gilmore  v.  Kilpatrick-Kock 

Meyer  v.  Evans,  66-179.  Dry  Goods  Co.,  70  N.  W.,  175. 

2*  Clark  v.  Hyman,  55-14;  as  Hughes  v.  Cory,  20-399;  Jaf- 

Hughes  v.  Cory,  20-398.  fery  v.  Greenbaum,  64-492. 

25  Clark  v.  Hyman,  55-14.  29  Goll    &    Frank  Co.  v.  Miller, 

26  Meyer  v.   Evans,   66-179;    see  87-426;   Snouffer  v.  Kinley,  64  N. 
Hughes  v.  Cory,   20-399;   Clark  v.  W.,  770. 

Hyman,  55-14;     Sperry    v.    Ethe-  so  Mull  v.  Dooley,  89-312;   H.  E. 

ridge,    63-543;    Jaffery    v.    Green-  Spencer  Co.  v.  Papach,  70  N.  W., 

baum,  64-492;   Meyer  v.  Gage,  65-  748;     In    re    Bloomfield    Woolen 

606.  Mills  Co.,  70  N.  W.,  115. 


§§  960,  961.]  CHATTEL   MORTGAGES.  189 

§  960.  Of  questions  of  priority  over  landlords' 
liens.  —  A  lease  giving  a  landlord  a  mortgage  on  the  ten- 
ant's goods  and  not  recorded,  is  not  valid  as  against  a 
mortgage  subsequently  executed  on  the  same  goods  and 
recorded,  where  the  holder  has  no  notice  of  the  prior  mort- 
gage.31 The  lien  created  by  a  chattel  mortgage  upon 
goods  used  in  a  hotel  before  the  beginning  of  a  lease  of  the 
building  is  superior  to  the  landlord's  lien  for  rent.32 
Where  there  was  a  prior  unrecorded  mortgage  upon  goods 
which  were  claimed  under  a  landlord's  lien,  and  after  the 
landlord's  lien  had  attached  the  note  secured  by  the  mort- 
gage was  sold  and  transferred  to  a  third  party,  but  no  as- 
signment of  the  mortgage  recorded,  and  the  mortgagee 
fraudulently  entered  satisfaction  of  the  mortgage  on  the 
margin  of  the  record,  and  after  this  by  an  agreement  be- 
tween the  landlord  and  the  lessees  a  third  party  was  sub- 
stituted for  one  of  the  original  lessees,  no  new  lease  being 
made,  these  transactions  did  not  have  the  effect  to  make 
the  landlord's  lien  superior  to  the  lien  of  the  mortgage.33 

The  lessor  of  a  hotel  has  no  lien  for  rent  on  property 
owned  by  the  lessee's  wife,  though  it  be  used  in  the  hotel 
during  the  term  of  the  lease,  and  where  she  mortgaged 
such  property  to  secure  a  debt,  and  the  mortgage  was  re- 
corded, and  the  lessee  afterward  sold  his  lease  to  a  party, 
and  the  wife  sold  the  mortgaged  property  to  the  same 
party  subject  to  the  mortgage,  and  he  took  possession  un- 
der such  purchase,  it  was  held  that  the  lessor  had  a  lien  on 
the  property  to  secure  the  rent  accruing  after  the  pur- 
chaser took  possession,  but  that  such  lien  was  inferior  to 
the  mortgage  which  the  original  lessee's  wife  had  placed 
on  the  property.34 

§  961.  Of  priority  of  the  lien  generally. — When  an 
action  of  replevin  was  dismissed  by  plaintiffs  before  issue 
joined,  and  an  order  entered  for  the  return  of  the  prop- 
erty, which  was  not  complied  with  by  plaintiffs,  it  was 
held  that  a  chattel  mortgage  executed  by  them  while  in 

si  Pitkins  v.  Fletcher,  47-53.  si  Perry    v.    Waggoner,    68-403; 

32  Rand  v.  Barrett,  66-731.  see  Jarchow  v.  Pickens,  51-381. 

as  Rand  v.  Barrett,  66-731. 


190  CHATTEL   MORTGAGES.  [§  961. 

possession  of  the  property,  and  before  the  issuance  of  the 
writ  of  restitution,  taken  by  the  mortgagee  in  good  faith, 
was  valid,  the  ownership  and  right  to  possession  of  the 
mortgagor  being  afterward  established.35  A  writ  of  at- 
tachment issued  out  of  the  United  States  court  directing 
the  marshal  to  attach  the  property  of  "A"  is  no  defense 
in  an  action  against  him  by  "A's"  mortgagee  for  convert- 
ing chattels  covered  by  the  mortgage.36  Where  a  debtor 
agreed  to  execute  to  one  of  liis  creditors  a  mortgage  on 
stock,  but  the  animals  were  not  specifically  pointed  out 
and  agreed  upon,  and  the  debtor  afterward  executed  a 
mortgage  upon  cattle  and  filed  it  for  record,  and  the  mort- 
gagee had  notice  of  it,  but  before  the  mortgage  came  into 
his  possession  and  on  the  same  day,  a  creditor  levied  an 
attachment  on  the  property,  the  attachment  was  held  to 
be  a  first  lien  thereon.37  Where  the  mortgagor  sold  the 
property,  with  the  consent  of  the  mortgagee,  the  pur- 
chaser agreeing  to  pay  part  of  the  mortgage  debt,  and 
agreeing  that  the  lien  should  continue,  and  the  purchaser 
sold  the  property  to  one  who  had  no  knowledge  of  the 
agreement,  and  no  actual  notice  of  it,  the  lien  of  the  mort- 
gage followed  the  property  into  the  hands  of  the  last  pur- 
chaser.38 An  unrecorded  chattel  mortgage  of  a  building 
erected  on  leased  premises  will  not  take  priority  over  a 
mortgage  on  the  landlord's  interest  in  the  premises  when 
it  appears  that  it  was  intended  that  the  building  should 
constitute  a  permanent  improvement.39 

Where  a  payee  of  a  note  secured  by  chattel  mortgage 
gave  it  to  the  maker  and  took  a  new  one  different  in 
amount,  and  payable  at  a  different  date,  without  any 
agreement  to  show  that  it  was  to  be  secured  by  the  mort- 
gage, he  lost  his  right  to  the  security  as  against  the  holder 
of  other  notes  secured  by  the  mortgage.40  Where  a  mort- 
gagee, acting  under  a  power  of  sale  in  a  mortgage,  sold 
the  mortgaged  property  to  a  purchaser  who  bought  it  for 

«B  Case  v.  Woleben,  52-389.  as  Oswald  v.  Hayes,  42-104. 

««  Sperry  v.  Etheridge,  70-27.  «9  Fletcher  v.  Kelly,  88-475. 

37  Cobb   v.   Chase,    54-253;     Day  *o  Wilhelml  v.  Leonard,  13-330 
v.  Griffith,  15-104. 


§961.]  CHATTEL  MORTGAGES.  191 

the  benefit  of  a  co-mortgagee  at  about  one-sixth  of  its 
actual  value,  the  purchaser  in  such  case  did  not  acquire 
the  title  to  the  property,  divested  of  the  equity  or  right  of 
redemption  in  the  mortgagor,  or  junior  mortgagee.41 
When  a  sale  under  execution  is  made  of  property  mort- 
gaged, and  before  the  levy  the  sheriff  and  the  attorney 
for  the  judgment  plaintiff  knew  of  the  mortgage,  and  the 
purchaser  at  the  sale  had  knowledge  of  it  before  he  paid 
the  purchase  money,  he  is  not  protected  as  a  bona  fide 
purchaser.42 

The  owner  of  land  in  fee  who  leased  it  to  the  owner  of  a 
mill  situated  thereon,  and  who  purchases  the  mill  and 
lease,  does  not  thereby  extinguish  the  lien  of  an  existing 
chattel  mortgage  on  the  mill.43  When  the  mortgagor  re- 
tains possession  of  the  property,  the  mortgage,  to  be  no- 
tice to  third  parties  and  take  precedence  over  a  subse- 
quent attachment,  must  be  filed  for  record  in  the  county 
where  the  holder  of  the"  property  resides,  or  the  attach- 
ing creditors  must  have  had  notice  of  the  mortgage.44 

Where  one,  prior  to  becoming  insolvent,  executed  a 
chattel  mortgage  to  secure  a  pre-existing  debt  and  sub- 
sequently made  an  assignment  for  the  benefit  of  credit- 
ors, the  property  so  mortgaged  passed  to  the  assignee 
charged  with  and  subject  to  the  mortgage.45  The  interest 
retained  by  the  mortgagor  in  property  mortgaged  when 
the  mortgagee  has  the  right  at  any  time  to  take  posses- 
sion, can  not  be  levied  on  and  sold  under  execution  or  at- 
tachment against  the  mortgagor,  and  one  who  secures  a 
second  mortgage  thereon  while  such  property  is  in  the 
custody  of  the  officer  under  such  levy,  will  hold  it  or  its 
proceeds  against  the  attaching  creditors.46 

«i  Alger  v.  Farley,  19-518.  Carson  &  Rand  L.  Co.  v.  Bunker, 

42 Cummings    v.    Tovey,    39-195;  83-751;    Ordway  v.   Kittle,   83-752; 

Campbell  v.  Leonard,  11-489;  Gor-  Coleman  v.  Reel,  75-304;  American 

don  v.  Harding,  33-550.  Wheel    Works    v.    Whinnery,    76- 

43  Denham  v.  Sankey,  38-269.  400;  Cole  v.  Green,  77-307;  Luce  v. 

4*  Code,    Sec.    2906;    Stewart    v.  Moorehead,  77-376;    Citizens  Nat'l 

Smith,    60-275;    Allen  v.    McCalla,  Bk.  v.  Johnson,  79-290;  Piano  Mfg. 

25-464;    Manny  v.  Woods,  33-265;  Co.  v.  Griffith,  75-102. 

Hessler  v.  Wilson,  36-152;  Kern  v.  45  Meyer   v.   Evans,    66-179;    see 

Wilson,  82-407;  Hibbard  v.  Zenor,  Sec.  934. 

82-505;    Cook  v.  Gilchrist,  82-277;  46  Wells  v.  Sabelowitz,  68-238. 


192  CHATTEL    MORTGAGES.  [§  961. 

Where  a  husband  made  a  chattel  mortgage  of  a  stock 
of  goods  to  his  wife  and  sent  it  to  the  recorder  for  record, 
all  without  her  knowledge,  and  there  was  no  evidence 
that  it  was  to  be  delivered  to  her,  or  that  it  was  for  her 
use,  it  did*  not  constitute  a  delivery  of  the  mortgage  to 
her,  and  attachments  levied  upon  the  goods  after  the  date 
of  the  mortgage  were  prior  liens,  even  though  she  knew 
of  the  mortgage  before  the  attachments  were  levied.47 
Where  goods  were  in  the  hands  of  a  party  who  was  an 
unsatisfied  pledgee  of  the  mortgagor  at  the  time  when  the 
mortgage  was  made,  and  when  the  property  was  seized 
thereunder,  and  he  objected  to  such  seizure  and  claimed 
to  be  the  owner  of  the  property  but  did  not  claim  a  lien 
upon  it,  his  failure  to  assert  his  lien  did  not  preclude  him 
from  recovering  for  the  conversion  of  the  property.48  The 
assignee  of  a  mortgagor  may  recover  by  action  of  detinue 
specific  personal  property  from  attaching  creditors  which 
is  under  mortgage  by  the  debtor,  and  which  mortgage  is 
prior  to  both  the  assignment  and  the  attachments.49 
Where  mortgaged  chattels  have  passed  into  the  hands 
of  the  mortgagees,  their  possession  is  notice  of  their  in- 
terest to  subsequent  attaching  creditors,  and  in  such  case 
it  is  immaterial  that  the  mortgage  was  not  recorded.50 

To  set  aside  a  sale  of  mortgaged  chattels  made  by  the 
mortgagee  at  the  instance  of  garnishing  creditors  of  the 
mortgagor,  fraud  must  be  established,  and  mere  inade- 
quacy of  price  alone  is  not  sufficient  to  establish  it.51 
Creditors  of  the  mortgagor,  who,  subsequent  to  an  agree- 
ment between  the  mortgagor  knd  the  mortgagee  with  ref- 
erence to  place  of  sale  of  the  property,  garnish  the  mort- 
gagee, are  bound  by  such  agreement  and  can  not  have  it 
set  aside  in  the  absence  of  proof  of  collusion  and  fraud.52 
The  mortgagor  of  mares,  mortgaged  before  the  colts  were 
foaled,  has,  prior  to  the  time  they  should  be  weaned,  no 
interest  in  them  subject  to  attachment.53  One  who  in- 

47  Wadsworth  v.  Barton,  68-599.  <so  Jaffray  v.  Greenbaum,  64-492. 

48  Gunsel    v.  McDonnell,    67-521.          01  Tootle  v.  Taylor,  64-629. 
4»  Goldsmith  v.  Willscn,  67-662;          52  Tootle  v.  Taylor,  64-629. 

Evans  v.  St.  Paul  Harvester  Works,         os  Rogers  v.  Highland,  69-504. 
63-204. 


§§  962,  963,  964.]        CHATTEL  MOKTGAGES.  193 

tervenes  in  a  garnishment  proceeding,  claiming  an  at- 
tached fund  as  proceeds  of  mortgaged  property,  must 
show  that  his  debt  has  not  been  paid,54  and  further  as 
to  questions  of  priority.55 

§  962.  Of  mortgages  between  husband  and  wife. 
— A  chattel  mortgage  made  by  .husband  to  his  wife,  if  exe- 
cuted in  good  faith  to  secure  an  existing  debt,  is  valid 
against  the  creditors  of  the  husband  who  had  notice 
thereof.56 

§  963.  When  an  instrument  is  a  chattel  mortgage 
and  when  an  assignment  for  the  benefit  of  creditors. 
—Whether  an  instrument  is  to  be  regarded  as  an  assign- 
ment for  the  benefit  of  creditors  or  as  a  mortgage,  is  to  be 
determined  from  the  intention  of  the  parties,  and  if  the 
intention  of  the  debtor  is  merely  to  secure  a  debt  of  one 
or  more  of  his  creditors  and  the  conveyance  is  not  in- 
tended as  an  absolute  disposition  of  his  property  but  he 
reserves  to  himself  a  right  therein,  it  will  be  treated  as  a 
mortgage,  even  though  the  debtor  is  insolvent  at  the  time, 
and  it  covers  all  his  property  and  only  a  portion  of  his 
debts  are  secured  by  it.57 

§  964.  Of  agreements  between  mortgagor  and 
mortgagee  regarding  time  of  sale. — It  seems  that  the 
mortgagor  and  mortgagee  may,  after  the  execution  of  the 
mortgage,  fix  a  different  time  and  place  of  sale  of  the  prop- 
erty than  that  stated  in  the  mortgage,  and  that  their 
agreement  will  be  binding  upon  every  one,  if  made  in  good 
faith.58 

54  Pool  v.  Carhart,  71-37.  Dryden,  83-446;  Harlan  v.  Ash,  84- 

ss  Reynolds  v.  Black,  91-1;  Leg-  38;    Gammon  v.  Bull,  86-754;  Stern 

gett  &  Myers  Tobacco  Co.  v.  Col-  v.  Linehan,  88-641;  Nat'l  State  Bk. 

Her,    89-144;     Burdette    v.    Wood-  v.  Morse,  73-174;  Clark  v.  Barnes, 

worth,  77-144;  Mass.  Loan  &  Trust  72-563. 

Co.    v.    Moulton,    81-155;    Bray    v.  se  Headington  v.  Langland,    65- 

Flickinger,  79-313;  Parker  v.  Loan  276. 

&  Trust  Co.,  81-458;   Wood  v.  Du-  57  Cadwell's    Bk.    v.   Crlttenden, 

val,  69  N.  W.,  1061;  Smith  v.  Clark,  66-237;    Fromme  v.  Jones,  13-480; 

69  N.  W.,  1011;    King  v.  Wallace  Gage  v.  Parry,  69-605;  David  Brad- 

Bros.,   78-221;    Parker  v.  Farmers  ley  &  Co.  v.   Hopkins,  67  N.  W., 

L.     &     T.     Co.,     81-458;     Blotcky  261. 

Bros.    v.    O'Neill,    83-374;     Letts,  ss  Tootle  v.  Taylor,  64-629. 

Fletcher   &    Co.   v.   McMasters    & 

Vol.  H—13 


194  CHATTEL   MOETGAGES.  [§§  965,  966,  967. 

§  965.  Of  second  mortgages. — The  execution  of  a 
second  mortgage  on  personal  property  which,  in  legal 
contemplation,  amounts  to  a  sale  of  the  equity  of  redemp- 
tion of  the  mortgagor  in  the  property,  is  valid.59  Where 
there  are  two  mortgages  on  crops  to  be  grown  they  are 
entitled  to  precedence  in  the  order  of  their  execution  and 
record.60 

§  966.  Of  protection  to  diligent  creditors. — When 
an  insolvent  debtor  executes  a  mortgage  to  bona  fide 
creditors  to  hinder  and  delay  other  creditors  in  the  en- 
forcement of  their  claims,  and  there  is  no  evidence  that 
the  mortgagees  had  any  intention  of  taking  part  in  any 
such  fraudulent  plan,  except  so  far  as  was  necessary  to 
protect  themselves,  it  is  a  case  of  race  between  creditors 
and  the  mortgage  is  not  void.61 

The  law  will  protect  a  creditor  who,  by  his  diligence,  se- 
cures his  own  claim,  even  though  he  knew  of  the  failing 
conuition  of  the  debtor  when  he  accepted  the  security,  if 
his  purpose  was  to  protect  his  own  interest, 

§  967.  Of  actions  to  recover  property  mortgaged— 
Actions  at  law.  —  Where  a  mortgage  provides  that  the 
mortgagor  shall  not  sell  or  dispose  of  the  mortgaged 
property,  and  a  party  with  notice  of  the  mortgage  pur- 
chases part  of  the  property,  he  is  liable  in  damages  to  the 
mortgagee  for  the  wrongful  conversion  of  the  merchan- 
dise purchased.62 

Where  a  mortgagee  took  possession  of  the  mortgaged 
property  before  the  debt  was  due  in  accordance  with  the 
provision  in  the  mortgage  authorizing  him  so  to  do,  such 
possession  is  legal  and  he  does  not  render  himself  liable  to 
damages  for  so  doing,  providing  he  sells  in  the  manner 
allowed  by  the  mortgage.63  Where  one  seeks  to  recover 
by  virtue  of  a  chattel  mortgage  the  property  which  he 

59  Tootle  v.  Taylor,  64-629;  Staf-  62  Fisher  v.  Friedman,  47-443. 

ford  Emery  v.  Kempton,  2  Gray,  cs  Mather   v.    Robinson,    47-403; 

257;    Roys   v.    Johnson,    Id.,    162;  Colby  v.  W.  W.  Kimball  Co.,  68  N. 

Wells  v.  Sabelowitz,  68-238.        -  W.,  786;  Howery  v.  Hoover,  66  N. 

eo  Bradley  v.  Gelkinson,  57-300.  W.,  772. 

ei  Kuhn  v.  Clement,  58-589. 


§§  968,   969.]  CHATTEL   MORTGAGES.  195 

claims  is  covered  by  it,  he  must  rely  on  the  strength  of  his 
own  title.64 

Under  a  clause  authorizing  the  mortgagee  to  take  the 
property  whenever  he  chooses  so  to  do,  and  sell  the  same 
to  satisfy  his  debt,  he  can  assert  that  right  when  the  goods 
are  seized  by  an  officer  on  execution  against  the  mort- 
gagor.65 Though  a  chattel  mortgage  authorizes  the  mort- 
gagee to  take  possession  of  the  mortgaged  property  at  any 
time  he  may  choose,  and  to  sell  sufficient  to  pay  the  debt 
secured  where  it  also  contains  a  provision  that  on  pay- 
ment of  such  debt  according  to  the  tenor  of  the  notes  given 
for  the  same  the  mortgage  shall  be  void,  the  mortgagee  is 
not  authorized  to  sell  the  property  in  advance  of  maturity 
of  the  debt  or  some  part  thereof  until  which  time  the 
mortgagor's  equity  of  redemption  does  not  expire.66 

§  968.  Of  the  mortgagor's  interest  in  the  property 
before  sale.  —  The  mortgagor  of  personal  property  has  no 
interest  in  the  property  that  can  be  levied  on  and  sold  un- 
der execution,  though  the  ownership  remains  in  him.67 

But  when  the  mortgagor  is  in  possession  and  has  the 
right  to  possession  of  the  property  for  a  definite  period, 
his  interest  prior  to  the  expiration  of  such  period  is  sub- 
ject to  levy  find  sale.68  But  it  might  be  otherwise  if  the 
mortgagee  could  take  possession  at  his  pleasure,  or  if  the 
mortgagor's  right  of  possession  was  for  no  definite  time.69 
See  provisions  of  last  section  of  this  chapter. 

§  969.  Of  the  mortgagor's  interest  after  sale. — The 
mortgagor  has  an  equity  of  redemption  in  the  property 
after  the  conditions  in  the  mortgage  have  been  broken 
and  the  mortgagee  having  possession  thereof  may  be 
garnished  for  any  surplus  which  there  may  be  in  his  hands 
after  paying  his  debt.70 

e*  Eggert  v.  White,  59-464.  Merchants    &    Bankers    Ins.    Co., 

es  Wells  v.  Chapman,  59-658.  83-402. 

ee  Roster    v.    Seney,    69    N.    W.,  «s  Rindskopf  v.   Lyman,  16-260; 

868.  McConnell  v.  Denham,  72-494. 

67  Gordon     v.     Hardin,     33-550;  en  Rindskopf  v.   Lyman,   16-260; 

Campbell  v.  Leonard,  11-489:  Kern  see  Sec.  986. 

v.   Wilson,   73-490;    Hollingsworth  TO  Doane  v.  Garretson,  24-351. 
v.    Holbrook,    80-151;     Taylor    v. 


196  CHATTEL   MORTGAGES.  [§§970,971,972. 

The  equity  of  redemption  of  the  mortgagor  after  condi- 
tion broken,  will  pass  to  an  assignee  under  an  assignment 
for  the  benefit  of  creditors.71 

§  970.  Of  the  interest  of  the  mortgagee  in  the 
property.  —  In  the  absence  of  stipulations  to  the  contrary 
in  the  mortgage,  the  mortgagee  is  entitled  to  the  posses- 
sion of  the  property.72  He  is  in  law  the  owner  of  it,  sub- 
ject only  to  have  his  title  divested  by  the  mortgagor's 
paying  his  debt,  but  his  right  to  hold  possession  of  the 
property  ceases  when  the  debt  secured  thereby  is  dis- 
charged.73 

If  the  mortgagor  fail  to  fulfill  the  conditions  of  the 
mortgage,  the  mortgagee  becomes  the  absolute  owner  of 
the  property.74  If  the  mortgagee  rightfully  take  posses- 
sion of  the  property  under  his  mortgage,  a  failure  to  sell 
the  same  will  not  make  the  possession  wrongful.75  But  a 
mortgagee  in  possession  is  liable  to  garnishment;  if  not 
in  possession  he  can  not  be  charged  with  such  surplus.76 

§  971.  Of  equitable  mortgages. — When  a  party 
claims  a  lien  on  property  without  having  a  technical 
mortgage,  a  court  of  equity  will  recognize  and  sustain  his 
claim  when  it  appears  from  the  agreement,  or  contract, 
that  it  was  intended  that  he  should  be  secured  thereon.77 

§  972.  When  valid  against  existing  creditors,  etc. 
— A  chattel  mortgage  is  valid  against  existing  creditors 
if  duly  executed  though  not  recorded,  if  such  creditors 
have  notice  thereof,  and  when  recorded  the  record  is  con- 
structive notice,78  but  if  the  mortgage  is  invalid  it  imparts 
no  notice,  and  if  there  has  been  no  change  of  possession 

71  Gimble  v.  Ferguson,  58-414.  78  Kern  v.  Wilson,  82-407;    Hib- 

72  Code,  Sec.  2911;  Warder-Bush-  bard  v.  Zenor,  82-505;  Cook  v.  Gil- 
nell,  etc.,  v.   Harris,   81-153;    Hib-  Christ,  82-277;    Carson  &  Rand  L. 
bard  v.  Zenor,  82-505.  Co.  v.  Bunker,  83-751;   Ordway  v. 

73  Bellamy  v.  Doud,  11-285;  Hunt  Kittle,    83-752;    Allen  v.    McCalla, 
v.  Daniels,  15-146.  25-464;    Reeves  v.  Sebern,   16-234; 

7*Talbot     v.     DeForest,     3     G.  Manny  v.   Woods,  33-265;    Fox  v. 

Greene,  586;  Blair  v.  Barney,10-498.  Edwards,  38-215;   Hessler  v.  Hull, 

75  Bradley  v.  Redmond,  42-452.  36-152;  Boothby  v.  Brown,  40-104; 

7«  Fountain     v.     Smith,     70-284;  Pitkin  v.  Fletcher,  47-53;    Hicock 

Citizens     State     Bk.     v.     Council  v.  Buell,  51-655;  Nuckols  v.  Pence, 

Fluffs  Fuel  Co.,  89-618.  52-581;    Smith  v.    Champney,    50- 

77  Whiting  v.    Eichelberger,   16-  174;  Bacon  v.  Thompson,  60-284. 
422. 


§§973,  974,  975,  976.]  CHATTEL  MORTGAGES.  197 

under  such  a  mortgage  the  mortgagee  can  not  claim  any- 
thing as  against  an  execution  creditor  of  the  mortgagor.79 

§  973,  Of  waiver  of  the  lien  and  of  estoppel. — Tak- 
ing a  new  note  and  mortgage  to  secure  an  indebtedness 
already  evidenced  by  note  and  mortgage  on  the  same 
property,  does  not  operate  to  discharge  the  lien  under 
such  first  mortgage;80  but  it  seems  this  would  be  other- 
wise if  the  payee  of  a  note  secured  by  mortgage  surren- 
dered it  to  the  maker  and  took  a  new  note  for  a  different 
amount,  and  payable  at  different  time,  without  any  agree- 
ment that  it  was  to  be  secured  by  the  mortgage.81 

A  mortgagee,  in  the  absence  of  fraud,  is  not  precluded 
from  recovery  upon  the  mortgage  debt  because  he  permits 
property  covered  by  his -mortgage  to  be  sold  under  an  in- 
ferior claim  or  lien.82  Where  one  leaves  property  in  the 
possession  of  another  under  such  circumstances  that  such 
other  person  appears  to  be  the  owner  of  it,  and  the  one  in 
possession  of  it  mortgages  it  to  a  third  person  who  knows 
of  the  rights  of  the  real  owner,  the  latter  is  not  estopped 
to  claim  such  property  of  the  mortgagee.83 

§  974.  Of  the  enforcement  of  foreign  mortgages. 
—Mortgages  of  personal  property  executed  in  another 
State  in  accordance  with  the  laws  of  such  State,  will  be 
enforced  by  our  courts  when  the  property  is  removed  to 
this  State.84 

§  975.  Of  foreclosure  by  notice  and  sale. — Any 
mortgage  of  personal  property  to  secure  a  payment  of 
money  only,  and  wherein  the  time  of  payment  is  fixed  in 
the  instrument,  may  be  foreclosed  by  notice  and  sale  by 
a  sheriff  or  constable,  unless  the  parties  have  agreed 
otherwise.  And  if  a  mortgage  provides  for  the  posting  of 
notices  in  three  public  places  in  the  county,  any  three  pub- 
lic places  therein  will  be  sufficient.85 

§  976.    Of  the  notice  in  such  cases. — If  the  foreclos- 

70  Barr  v.  Cannon.  69-20.  ss  Bray   v.   FlerMnger,    69-167. 

so  Packard  v.  Kingman,  11-219.  «•*  Smith     v.     McLean,      24-322; 

si  Wilhelmi  v.  Leonard,  13-330.  Simms  v.  MrKee,  etc.,  25-341. 
82  Jones,  etc.,  v.  Turck,  etc.,  33-          RS  Campbell    v.   Wheeler,    H9-588, 

246.  and  cases  cited;  Code,  Sec.  4273. 


198  CHATTEL    MORTGAGES.  jj  ^77. 

ure  is  by  notice  and  sale,  the  notice  must  contain  a  full 
description  of  the  property  mortgaged,  together  with  the 
time,  place  and  terms  of  sale.80  The  notice  should  be 
signed  by  the  mortgagee,  but  if  it  has  been  assigned  by 
his  assignee,  or  if  it  has  been  placed  in  the  hands  of  an 
agent  or  attorney  for  foreclosure,  it  may  be  signed  by  such 
agent  or  attorney  for  his  principal. 

A  sale  without  posting  notices  or  without  posting  as 
provided  in  the  mortgage,  will  not  affect  the  title  of  the 
purchaser,  but  the  mortgagor  may  have  an  action  f  ,;r  dam- 
ages against  the  mortgagee.87  The  notice  may  be  in  the 
following  form : 

FORM  OF  NOTICE  OF  SALE  OF  MORTGAGED  CHATTELS  IN 
FORECLOSURE. 

Whereas,  on  the  day  of  ,  18—,  executed  and 

delivered  to  a  chattel  mortgage,  dated  on  the  said  day,  upon 

the  following  described  personal  property,  to  wit  (here  describe  the 
property),  to  secure  the  payment  of  -  -  dollars,  on  the  -  -  day 

of ,  18 — ,  and  which  mortgage  was  duly  recorded  in  the  office  of 

the  recorder  of  deeds  in  and  for county,  State  of  Iowa,  in  book 

No.  —  —  of  chattel  mortgages,  on  page  —  — ,  on  the  —  —  day  of 

— '- ,  18 — ,  at  o'clock  —  M.,  and  whereas,  default  has  been 

made  in  the  payment  of  the  money  secured  by  said  chattel  mortgage. 

Now,  therefore,  notice  is  hereby  given,  that  in  pursuance  of  the 
statute  in  such  cases  made  and  provided,  the  said  chattel  mortgage 
will  be  foreclosed  by  a  sale  of  the  property  therein  described  at  public 
auction  at  the  front  door  of  the  court  house  (or  if  at  another  place 
state  it),  in  ,  in  the  county  of  ,  State  of  Iowa,  on  the 

—  day  of ,  18 — ,  at o'clock  in  the noon  of  said 

day,  or  so  much  thereof  as  shall  be  -necessary  to  satisfy  the  said  sum 
of  —  -  dollars,  with  interest,  costs  and  expenses  of  sale  (including 
attorney's  fees  as  provided  in  said  mortgage,  if  any  are  provided), 
unless  the  same  shall  be  sooner  paid,  upon  the  following  terms,  to  wit 
(here  give  terms  of  sale). 

Dated  this day  of ,  18—. 

,  mortgagee. 

,  sheriff  of county,  Iowa. 

§  977.  Of  service  of  the  notice. — The  notice  must  be 
served  on  the  mortgagor  and  upon  all  purchasers  from 
him  subsequent  to  its  execution,  and  upon  all  persons 
having  recorded  liens  upon  the  same  property  which  are 

se  Code,  Sec.  4274.  87  Campbell  v.  Wheeler,  69-588. 


§  978.]  CHATTEL    MORTGAGES.  199 

junior  to  the  mortgage,  or  they  will  not  be  bound  by  the 
proceedings.88  The  service  and  return  may  be  made  in  the 
same  manner  as  in  the  case  of  an  original  notice  in  a  civil 
action,  in  a  court  of  record,  except  that  no  publication  is 
necessary  for  this  purpose,  the  general  publication  below 
specified  being  a  sufficient  service  upon  all  parties  in  cases 
where  service  is  to  be  made  by  publication.89 

When  notice  has  been  served  upon  the  parties  it  must 
be  published  in  the  same  manner  and  for  the  same  length 
of  time  as  is  required  in  cases  of  the  sale  of  like  proper- 
ty on  execution,  and  the  sale  is  to  be  conducted  in  the 
same  manner.90  The  evidence  of  the  service  and  publica- 
tion of  the  notice,  as  well  as  of  the  sale  made  in  accordance 
therewith,  may  be  perpetuated  by  proper  affidavits  and 
will  constitute  the  return  of  the  officer  or  person  making 
the  sale.91  Proof  of  the  posting  the  notice  of  sale  may  be 
'in  the  following  form: 

FORM  OF  AFFIDAVIT  OF  POSTING  NOTICE. 


{•88. 


State  of  Iowa, 
County 

I, ,  being  duly  sworn,  depose  and  say,  that  on  the day 

of  —  — ,  18 — ,  I  posted  up  true  copies  of  the  annexed  notice  in  (not 
less  than  three)  public  places  in  said  county,  one  of  which  was  at  the 
place  where  the  last  district  court  was  held. 

(Signature  of  deponent.) 

(Add  proper  certificate.) 

The  time  of  posting  must  be  at  least  three  weeks  before 
the  day  of  sale,  and  if  the  value  of  the  property  is  two 
hundred  dollars  or  upward,  there  must  be  also  two  publi- 
cations of  the  notice  in  a  newspaper  published  in  the 
county.  The  form  of  affidavit  of  proof  of  service  by  publi- 
cation heretofore  given  may  be  used  in  this  class  of  cases. 

§  978.  Of  parties  to  the  proceedings. — We  have  al- 
ready shown  that  the  notice  should  be  served  on  the  mort- 
gagor and  all  purchasers  from  him  subsequent  to  the  exe- 
cution of  the  mortgage  and  on  all  persons  having  recorded 
liens  on  the  same  property  junior  to  the  mortgage.  It  is 

ss  Code,  Sec.  4275.  »o  Code,  Sec.  4277. 

89  Code,  Sec.  4276.  »i  Code,  Sec.  4281. 


200  CHATTEL   MORTGAGES.  [§979. 

not,  however,  absolutely  necessary  that  subsequent  mort- 
gagees should  be  made  parties  in  these  proceedings,  but 
as  they  will  not  be  bound  by  the  proceedings  unless  they 
are  made  parties,  the  better  practice  is  to  serve  them  with 
notice,  that  the  interests  of  all  parties  in  the  property  may 
be  determined  and  concluded  by  sale.92 

§  979.    Of  the  sale  and  of  attorney's    fees. — The 

sheriff  conducting  the  sale  must  execute  to  the  purchaser 
a  bill  of  sale  of  the  property  which  shall  be  effectual  to 
carry  the  whole  title  and  interest  purchased,  and  the  pur- 
chaser will  take  all  the  title  and  interest  on  which  the 
mortgage  operated  as  a  lien.93  If  the  notes  secured  by 
such  mortgage  or  the  mortgage  itself  provide  for  the  pay- 
ment of  attorney's  fees,  the  same  fees  must  be  collected 
as  are  provided  by  law  in  actions  upon  such  contracts, 
and  if  an  attorney  is  employed  to  look  after  and  direct  the 
proceedings,  he  must  make  an  affidavit  like  that  required 
in  actions,  and  have  it  attached  by  the  officer,  or  person 
making  the  sale,  to  his  return  of  the  proceedings  thereun- 
der.94 

The  bill  of  sale  above  mentioned  may  be  in  the  follow- 
ing form : 

FORM  OF  BILL  OF  SALE  BY  SHERIFF. 

Know  all  men  by  these  presents,  that  whereas  (name  of  mort- 
gagor) on  the  day  of  ,  18 — ,  executed  and  delivered  to 

(name  of  mortgagee),  a  certain  chattel  mortgage  dated  on  said  day 
upon  the  following  described  personal  property,  to  wit:  (give  a  full 
description  of  the  property)  to  secure  the  payment  of  the  sum  of 

—  dollars  on  the  day  of ,  18 — ,  whicti  mortgage  was 

duly  recorded  in  the  office  of  the  recorder  of  deeds,  of  county, 

Iowa,  in  book  No.  ,  of  chattel  mortgages,  on  page  No. ,  on 

the  day  of ,  18 — .  And  whereas  default  was  made  in  the 

payment  of  said  sum  of  dollars,  so  secured  to  be  paid  by  said 

chattel  mortgage,  and  whereas,  by  virtue  of  the  statute  in  such  cases 
made  and  provided,  a  notice  containing  the  statements  required  by  law 
was  duly  served  and  published,  and  stating  that  the  said  mortgaged 
property  or  so  much  thereof  as  should  be  necessary  to  satisfy  said 

92  Code,     Sec.     4275;     Street     v.          M  Code,  Sees.  4278,  4280. 
Seal,  16-68;  Semple  v.  Lee,  13-304;          94  Code,    Sec.    4279;    Aultman   & 
Chase  v.  Abbott,  20-54;   Parrott  v.      Taylor  Co.  v.  Shelton,  90-288. 
Hughes,  10-459;  Donnelly  v.  Rush, 
15-99;  Johnson  v.  Harmon,  19-56. 


§  980.]  CHATTEL    MORTGAGES.  201 

mortgage,  with  interest  and  costs,  would  be  sold  at  public  auction  at 
uie  (state  exact  place  of  sale),  on  the  —  —  day  of  -  —  ,  18  —  ,  last, 
'at  —  —  o'clock,  in  the  —  —  noon  of  that  day. 

And  whereas,  in  pursuance  of  such  notice  and  statute  in  such 
cases  made  and  provided,  I,  -  —  ,  sheriff  of  -  -  county,  did  ex- 
pose said  property  for  sale  at  public  auction,  at  the  time  and  place 
mentioned  in  said  notice,  and  then  and  there  sold  the  same  to  (name 
of  purchaser)  who  bid  therefor  the  sum  of  --  dollars,  he  being  the 
highest  and  best  bidder,  and  that  being  the  highest  sum  bidden  for 
the  same.  Now,  therefore,  know  ye  that  in  pursuance  of  the  statute  in 
such  cases  made  and  provided  and  in  consideration  of  the  premises, 
and  of  the  sum  of  -  -  dollars,  so  bid  as  aforesaid,  the  receipt  of 
which  is  hereby  acknowledged,  I,  the  said  -  ,  sheriff  as  aforesaid. 
do  hereby  sell  and  deliver  the  said  personal  property,  to-wit:  (describe 
the  particular  property  sold  to  the  purchaser)  and  all  the  title  and 
interest  therein  upon  which  the  said  chattel  mortgage  was  a  lien,  to 
the  said  (name  of  the  purchaser),  his  heirs,  executors  and  assigns. 

In  witness  whereof,  I  have  hereto  set  my  hand  this  -  day  of 


,  sheriff  of  -  county,  Iowa. 


A  bill  of  sale  should  be  given,  if  demanded,  to  each  pur- 
chaser of  property  at  the  sale.  If  the  mortgage  provided 
for  attorney's  fees  the  affidavit  heretofore  mentioned  must 
be  attached  to  the  return. 

§  980.  Perpetuating  evidence  of  the  sale,  etc.— 
Evidence  of  the  service  and  publication  of  notice  and  of 
the  sale  itself  may  be  perpetuated  by  affidavits  which 
must  be  attached  to  the  bill  of  sale  and  are  receivable  in 
evidence  to  prove  the  facts  they  state.95  The  affidavit  of 
the  sheriff  conducting  the  sale  may  be  in  the  following 
form  : 

FORM  OF  AFFIDAVIT  OF  THE  SHERIFF  CONDUCTING  THE  SALE. 

State  of  Iowa,      ) 
-  -  County.     \  ss' 

(Here  affix  a  copy  of  the  printed  notice  of  sale.) 

I,  —  —  ,  sheriff  of  -  county,  Iowa,  being  duly  sworn,  depose 
and  say,  that  I  conducted  the  sale  of  personal  property  described  in 
the  annexed  printed  notice,  at  public  auction,  at  the  time  and  place 
mentioned  in  said  notice,  to  wit:  on  the  --  day  of  -  ,  18  _  ,  at 

—  o'clock  in  the  —  -  noon  of  that  day,  at  the  front  door  of  the 
court  house  (as  the  case  may  be),  in  the  -  -  of  -  county, 
aforesaid.  That  -  then  and  there  purchased  said  property  for  the 

95  Code,   Sec.   42S1. 


202  CHATTEL   MOKTGAGES.  [§§  981,  982,   983. 

price  of  dollars,  he  being  the  highest  and  best  bidder  therefor 

(if  there  are  several  purchasers  the  facts  must  be  stated  accordingly), 
and  that  I  then  and  there  executed  to  the  said  purchaser  a  bill  of  sale 
for  the  said  property  so  purchased  by  him. 

,  sheriff,  etc. 

(Add  the  usual  certificate.) 

§  981.  Of  the  validity  of  the  sale. — Sales  made  in 
accordance  with  the  requirements'  heretofore  stated  are 
valid  in  the  hands  of  a  bona  fide  purchaser  whatever  may 
be  the  equities  between  the  mortgagor  and  the  mortga- 
gee.1 But  it  seems  that  a  sale  made  under  a  deed  of  trust 
after  the  payment  of  the  debt  secured  thereby  is  abso- 
lutely void ;  there  must  be  a  valid  subsisting  power  under 
the  deed  to  render  the  sale  valid.2 

§  982.  Of  the  power  of  sale. — A  clause  in  a  mort- 
gage giving  the  mortgagee  power  to  take  possession  of 
the  property  and  sell  the  same  does  not  authorize  him  to 
dispose  of  the  property  except  for  cash;  he  can  not,  under 
such  authority,  barter  it  away.3  Where  a  mortgage  pro- 
vides for  advertisement  and  sale,  and  the  mortgagee  sells 
without  advertising,  representatives  of  the  mortgagor  can 
not,  for  that  reason,  have  the  sale  set  aside.4 

The  mortgagee  may  foreclose  by  notice  and  sale  or  by 
proceeding  in  equity,  at  his  election,  and  the  latter  wrould 
be  the  proper  course  to  pursue  when  third  parties  have 
claims  on  the  property.5 

§  983.  Of  the  remedy,  costs,  etc. — If  property  is 
wrongfully  seized  under  a  chattel  mortgage  the  owner 
need  not  enjoin,  but  may  maintain  an  action  at  law  for 
the  property  or  its  value.6  And  if  one  has  a  complete 
remedy  at  law,  he  can  not  remove  the  case  to  the  district 
court  by  injunction.7  A  chattel  mortgagee  authorized 
to  take  possession  and  to  sell  at  public  auction  can  not 
recover  for  his  services  or  for  clerk  hire  in  selling  the 
goods  at  retail. 

1  Code,  Sec.  4282.  B  Packard  v.  Kingman,  11-219. 

2  Penny  v.  Cook,  19-538.  «  Black  v.  Howell,  56-630. 

s  Edwards,   etc.,  v.   Cottrell,   43-          ~  Sweet  v.  Oliver,  56-744;  Silver- 
194.  man  v.  Kuhn,  53-436. 

^Whitaker  v.  Sigler,  44-419. 


§  984.]  CHATTEL    MOETGAGES.  203 

And  under  a  mortgage  authorizing  the  mortgagee  to 
take  possession  on  default  of  payment  of  the  debt  and  to 
sell,  if  he  takes  possession  and  keeps  the  property,  treat- 
ing it  as  his  own,  without  foreclosing  the  mortgage,  he  will 
be  liable  as  for  a  conversion,  and  in  such  a  case  damages 
are  to  be  estimated  as  of  the  time  he  took  possession,  and 
expenses  incurred  by  him  in  the  care  of  the  property  can 
not  be  allowed  to  him.  Where  the  mortgage  authorizes 
the  sale  of  the  property  at  private  sale,  the  proceeds  to  be 
applied  on  the  debt,  after  deducting  all  of  the  expenses 
of  sale,  the  mortgagee  has  the  right  to  sell  and  to  reim- 
burse himself  for  necessary  expenses  incurred,  but  not  for 
sheriff's  fees  and  the  costs  of  appraisement,  as  such  ex- 
penses were  unnecessary.8 

It  has  been  said  that  under  stipulations  authorizing 
the  mortgagee  to  take  possession  whenever  he  "shall 
choose  so  to  do,"  that  his  motive  or  purpose  in  taking  pos- 
session cannot  be  questioned.  Under  a  like  stipulation 
and  authority  to  "sell  the  same  at  public  or  private  sale, 
or  so  much  thereof  as  will  be  sufficient  to  pay  the  amount 
due  him  or  to  become  due,  as  the  case  may  be,"  it  was 
held  that  the  stipulation  contemplated  the  right  of  the 
mortgagee  to  sell  the  property  before  the  maturity  of  the 
mortgage  debt  and  apply  the  proceeds  in  its  extinguish- 
ment. 

§  984.  Of  injunction  and  transfer  to  the  district 
court.  —  The  right  of  the  mortgagee  to  foreclose  as  well  as 
the  amount  claimed  to  be  due,  may  be  contested  by  any 
one  interested  in  so  doing,  and  the  proceedings  may  be 
transferred  to  the  district  court,  for  which  purpose  an  in- 
junction may  issue.9 

And  where  such  foreclosure  and  sale  is  restrained  on 
the  ground  of  usury  and  transferred  to  the  district  court, 
it  stands  as  a  foreclosure  in  that  court,  and  the  court  has 
power  to  render  a  judgment  or  forfeiture  in  favor  of  the 
school  fund.10 


R  Myers  v.  Snyder,  64  N.  W.,  771.         10  Hanlin  v.  Parsons,  33-207. 
9  Code,  Sec.  4283. 


204  CHATTEL   MOKTGAGES.  [§§  985,   986,  987. 

But  an  injunction  will  not  issue  as  a  matter  of  right  in 
such  cases,  where  it  is  not  necessary  to  protect  the  rights 
of  the  parties  interested,  and  they  have  already  adopted 
another  proceeding  affording  a  full  and  complete  rem- 
edy.11 Nor  does  section  4283  of  the  code  have  any  refer- 
ence to  or  authorize  the  appointment  of  a  receiver.12 

§  985.  Of  proceedings  in  the  district  court. — If 
the  case  is  transferred  to  the  district  court  it  stands  there 
for  trial  for  all  purposes  as  though  originally  commenced 
therein,  and  the  proceedings  in  court  will  be  the  same  as 
in  case  of  foreclosure  of  real  estate  mortgages,  to  which 
chapter  the  reader  is  referred. 

§  986.  Relating  to  levies  on  mortgaged  personal 
property.  —  In  the  chapter  on  executions  and  exemp- 
tions, section  812,  will  be  found  a  discussion  of  this  sub- 
ject. 

§  987.  Of  the  sale  of  chattel  mortgage  property 
which  has  been  pledged  as  collateral. — Where  chattel 
property  is  pledged  as  security  for  an  indebtedness,  unless 
provision  is  made  by  agreement  in  writing  therefor,  the 
same  may  be  sold  for  the  non-payment  of  the  indebted- 
ness by  giving  the  pledger  or  any  purchaser  or  assignee 
under  him  of  the  property  or  any  part  of  it,  which  he  has, 
ten  days'  notice  in  writing  of  the  intention  to  sell  the 
same  and  to  make  an  application  of  the  proceeds  to  the 
satisfaction  of  the  debt  and  by  posting  for  the  same  time, 
in  three  public  places  in  the  township  of  such  pledger's 
residence,  a  notice  containing  a  full  and  accurate  descrip- 
tion of  the  property  to  be  sold,  the  time  and  hour  when, 
and  the  place  at  which  the  sale  will  take  place.  If  re- 
demption is  not  made  before  the  date  thus  fixed,  the 
pledgee  may  sell  at  public  auction,  to  the  highest  bidder, 
the  pledged  property  or  so  much  of  the  same  as  may  be 
necessary  to  pay  the  debt,  interest,  and  all  costs  of  making 
such  sale,  and  may  be  a  bidder  at  such  sale.  He  must 
apply  the  proceeds  first,  in  payment  of  such  costs,  and, 

11  Rankin  v.  Rankin,  67-322.  12  Silverman  v.  Kuhn,  53-436. 


g  987.]  CHATTEL    MORTGAGES.  205 

second,  to  the  payment  of  the  debt.  Any  surplus  arising 
from  the  sale  and  any  property  remaining  unsold  must  be 
paid  or  returned  to  the  pledger  or  to  his  assigns.13  Such 
pledgee  may  commence  an  action  in  equity  for  the  fore- 
closure of  such  collaterals,  or  pledges,  and  the  court  must 
determine  all  of  the  issues  presented  as  in  other  equity 
cases,  and  render  a  judgment  for  the  amount  due  from  the 
pledgor  and  award  special  execution  for  the  sale  of  the 
collaterals — or  pledges  and  general  execution  for  any  bal- 
ance, or  may  render  such  a  judgment  as  may  be  necessary 
to  carry  out  any  written  agreement  of  the  parties  concern- 
ing the  subject  matter;  but  in  all  cases  a  sale  may  be 
ordered  unless  there  be  a  written  stipulation  to  the  con- 
trary.14 

"  Code,  Sec.  4285.  "  Code,  Sec.  4286. 


CHAPTER  LXI. 

OF  CONTEMPTS 

Sec.  988.  What  acts  and  omissions  are  deemed  to  be  contempts. 

989.  Of  contempts  of  the  general  assembly. 

990.  Failure  to  answer  interrogatories,  a  contempt. 

991.  Disobedience  of  judgment  or  orders,  a  contempt. 

992.  Of  contempts  in  proceedings  auxiliary  to  execution. 

993.  Of  contempts  in  equitable  proceedings. 

994.  Of  contempts  in  violation  of  injunctions. 

995.  Of  contempts  in  habeas  corpus  proceedings. 

996.  Of  contempts  for  failure  to  obey  subpoena. 

997.  Of  acts  which  are  not  considered  contempts. 

998.  Of  the  punishment  for  contempts. 

999.  The  preservation  of  the  evidence. 

1000.  Of  the  trial,  pleadings,  evidence,  etc. 

1001.  Of  appeals. 

1002.  Punishment  for  contempt  not  a  bar  to  an  indictment. 

Section  988.  What  acts  and  omissions  are  deemed 
to  be  contempts.  —  Our  statute  provides  that  the  fol- 
lowing acts  or  omissions  shall  be  deemed  to  be  con- 
tempts, and  may  be  punished  as  such  by  any  of  the  courts 
of  this  State,  or  by  any  judicial  officer  acting  in  the  dis- 
charge of  an  official  duty.1 

1st.  Contemptuous  or  insolent  behavior  toward  the 
court,  while  engaged  in  the  discharge  of  a  judicial  duty, 
which  may  tend  to  impair  the  respect  due  to  its  au- 
thority.2 

2d.  Any  willful  disturbance  calculated  to  interrupt 
the  due  course  of  its  official  proceedings.3 

i  Dunham  v.  State,  6-245;    State  worth,  66-629;    Russell  v.  French, 

v.  Anderson,  40-207;  Robb  v.  Me-  67-102;  Eikenberry  v.  Edwards,  67- 

Donald;  29-330;    State  v.  Start,  7-  619;    Farmer  v.  Hoffman,    67-678; 

601;  State  v.  Duffy.  15-425;  State  v.  Wise  v.  Chaney,  67-73;    Treadway 

Archer,  48-310;  Saylor  v.  Mookbie,  v.  Van  Wagenen,  91-556. 

9-209;     State    v.    Meyers,     44-5SO;  2  Code,    Sec.    4460. 

Skiff  v.  State,  2-550;  Lutz  v.  Ayles-  s  Code,  Sec.  4460. 

206 


§  988.]  CONTEMPTS.  207 

3d.  Illegal  resistance  to  any  order  or  process  made 
or  issued  by  it.4 

4th.  Disobedience  to  any  subpcena  issued  by  it  and 
duly  served,  or  refusing  to  be  sworn  or  to  answer  as  a 
witness.5 

5th.  The  unlawfully  detaining  of  a  witness  or  party  to 
an  action  or  proceeding,  pending  before  such  court,  while 
going  to  or  remaining  at  the  place  where  the  action  or 
proceeding  is  pending  after  being  summoned,  or  know- 
ingly assisting,  aiding,  or  abetting  any  person  in  evad- 
ing the  service  of  process  of  a  court.6 

6th.  Any  other  act  or  omission  specially  declared  a 
contempt  by  law.7  To  constitute  a  contempt  under  the 
first  subdivision  above,  the  act  or  conduct  complained 
of  must  take  place  in  the  actual  or  constructive  presence 
of  the  court,  and  the  contemptuous  or  insolent  behavior 
must  be  toward  the  court,  and  the  court  must  be  engaged 
in  the  discharge  of  an  official  duty,  which  behavior  tends 
to  impair  the  respect  due  to  its  authority.8 

But  the  contemptuous  or  insolent  conduct  need  not  be 
in  the  court  room  and  under  the  eye  of  the  court,  in  order 
to  amount  to  a  contempt.9  The  statute  above  mentioned 
confers  general  authority  on  the  courts  of  this  State,  and 
upon  any  judicial  officer,  acting  in  the  discharge  of  an 
official  duty,  to  punish  for  contempt.10 

A  defendant  in  attachment  who  is  called  before  a 
judge  to  discover  his  property  under  the  code,  section 
3901,  may  be  punished  by  the  judge  for  contempt,  in  re- 
fusing to  answer  a  proper  question,  and  the  power  to 
punish  such  a  contempt  is  not  confined  to  the  courts.11 
"NVliere  a  contention  arose  between  counsel  as  to  whether 
the  witness  had  not  already  answered  a  question,  and  the 
court,  after  hearing  the  reporter's  notes  read,  decided 
that  she  had  answered  the  question,  whereupon  one  of 

*  Code,  Sec.  4460.  s  Dunham  v.  State,  6-245. 

B  Code,  Sec.  4460.  10  Brown    v.     Davidson,     59-461, 

e  Code,  Sec.  4460.  463. 

i  Code,  Sec.  4460.  n  Lutz  v.  Aylesworth,  66-629. 

«  Dunham  v.  State,  6-245. 


208  COXTEMPTS.  [§  938. 

the  attorneys  sprang  to  his  feet,  and,  turning  to  the  court, 
said  in  loud  tones  and  insulting  manner  "she  has  not 
answered  the  question,"  he  was  held  guilty  of  contempt, 
and  that  regardless  of  the  question  whether  the  court 
was  right  or  wrong  in  its  decision.12  In  a  proceeding 
auxiliary  to  execution  a  party  was  ordered"  by  the  judge 
to  turn  over  certain  notes  to  be  sold  in  satisfaction  of  the 
execution;  the  notes  were  not  in  his  hands,  but  in  the 
hands  of  a  resident  of  a  distant  State,  but  were  under  the 
control  of  the  party  against  whom  the  order  was  made; 
his  disobedience  of  the  order  of  the  court  was  a  con- 
tempt.13 And  it  is  held  that  the  chapter  of  the  code  which 
provides  for  proceedings  auxiliary  to  execution,  is  con- 
stitutional.14 

Where  the  defendant,  as  judge,  ordered  plaintiff,  under 
sections  3315,  3316  of  the  code,  to  pay  to  the  administrator 
of  an  estate  certain  money  in  his  hands  belonging  to  the 
estate,  and  he  refused  on  the  ground  that  he  had  received 
it  as  a  mere  clerk  of  a  prior  administrator,  and  had  paid, 
it  out  to  the  widow  for  the  support  of  her  family,  and  in 
discharge  of  claims  against  the  estate,  and  that  he  had 
in  his  possession  no  money  belonging  to  the  estate,  his 
disobedience  of  the  order  was  a  contempt,  and  it  was 
held,  his  showing  did  not  purge  him  of  the  same,  and 
he  was  properly  committed  to  jail  until  he  complied  with 
the  order.15 

Any  court  of  record  is  also  authorized  to  punish  the 
following  acts  or  omissions  as  contempts: 

1st.  The  failure  to  testify  before  a  grand  jury  when 
lawfully  required  so  to  do.  2d.  Assuming  to  be  an  offi- 
cer, attorney  or  counselor  of  the  court,  and  acting  as  such 
without  authority.  3d.  Misbehavior  as  a  juror  by  im- 
properly conversing  with  a  party  or  with  any  other  per- 
son, in  relation  to  the  merits  of  an  action,  in  which  he 
is  acting,  or  is  to  act,  as  a  juror;  or  receiving  a  com- 
munication from  any  person  in  respect  to  it,  without 

12  Russell  v.  French,  67-102.  i*  Eikenberry    v.    Edwards,    67- 

is  Eikenberry    v.    Edwards,    67-      619;   Farmer  v.  Hoffman,  67-678. 
619.  is  Wise  v.  Chancy,  67-73. 


§  989.]  CONTEMPTS.  209 

immediately  disclosing  the  same  to  the  court.  4th. 
Bribing,  attempting  to  bribe,  or  in  any  other  manner  im- 
properly influencing,  or  attempting  ta  influence,  a  juror 
to  render  a  verdict,  or  suborning,  or  attempting  to 
suborn  a  witness.  5th.  Disobedience  by  an  inferior 
tribunal,  magistrate,  or  officer,  to  any  lawful  judgment, 
order,  or  process,  of  a  superior  court  of  procedure,  in  any 
matter  in  a  manner  contrary  to  law,  after  it  has  been 
removed  from  such  tribunal,  magistrate  or  officer.16 

§  989.  Of  contempts  of  the  general  assembly.— 
Each  house  has  authority  to  punish,  as  a  contempt,  by 
fine  and  imprisonment,  or  either  of  them,  the  offense  of 
knowingly  arresting  a  party  in  violation  of  his  privileges, 
or  assaulting  or  threatening  to  assault  a  member,  or 
threatening  to  do  any  harm  to  the  person  or  property  of 
a  member,  for  anything  by  him  said  or  done  in  either 
house,  as  a  member  thereof;  or  attempting  by  menace 
or  other  corrupt  means,  to  control  or  influence  a  member 
in  giving  his  vote,  or  prevent  his  giving  it;  of  disorderly 
or  contemptuous  conduct  tending  to  disturb  its  proceed- 
ings, or  refusal  to  attend  or  be  sworn,  or  be  examined 
as  a  witness  before  either  house  or  a  committee  when 
duly  summoned;  or  assaulting  or  preventing  any  person 
going  to  either  house  or  its  committee  by  order  thereof, 
knowing  the  same;  or  rescuing,  or  attempting  to  rescue, 
any  person  arrested  by  order  of  either  house,  knowing  of 
such  arrest,  or  knowingly  impeding  any  officer  of  either 
house  in  the  discharge  of  their  duties  as  such.17 

Fines  and  imprisonment  for  such  contempt  are  only 
such  as  are  imposed  by  an  order  of  the  proper  house 
entered  on  its  journals,  stating  the  grounds  thereof,  and 
imprisonment  will  not  extend  beyond  the  session  at 
which  it  is  ordered,  will  be  in  the  jail  of  the  county  in 
which  the  general  assembly  is  then  sitting,  and  such 
punishment  will  not  constitute  a  bar  to  any  other  pro- 
ceeding, civil  or  criminal,  for  the  same  act. 

is  Code,  Sec.  4461;  State  v.  Duffy,          IT  Code,  Sec.  18. 
15-425. 

Vol.  11—14 


210  CONTEMPTS.  [§§  990, 991, 992. 

Imprisonment  is  effected  by  a  warrant  of  the  presid- 
ing officer  for  the  time  being  of  the  house  ordering  it, 
countersigned  by  the  acting  secretary  or  clerk,  running 
in  the  name  of  the  State,  and  directed  to  the  sheriff  or 
jailer  of  the  proper  county.  Under  such  warrant  the  offi- 
cer is  authorized  to  commit  or  detain  the  person.  Fines 
are  collected  by  a  similar  warrant,  directed  to  any  proper 
officer  of  any  county  in  which  the  offender  has  property, 
and  executed  in  the  same  manner  as  executions  for  fines 
issued  in  courts  of  record,  and  the  proceeds  must  be  paid 
into  the  State  treasury.18 

§  990.  Failure  to  answer  interrogatories,  a  con- 
tempt.—  The  court  may  compel  answers  to  interroga- 
tories to  pleadings  by  process  for  contempt.19 

§  991.  Disobedience  of  judgments  or  orders,  a 
contempt. —  Disobedience  of  judgments  or  orders  which 
do  not  require  the  payment  of  money,  or  ttie  delivery  of 
the  possession  of  property,  may  be  enforced  by  process 
for  contempt  of  court.20 

So  attachment  for  contempt  is  the  proper  mode  for 
enforcing  obedience  to  a  continuing  order,  in  the  form 
of  a  mandatory  injunction.21 

§  992.  Of  contempts  in  proceedings  auxiliary  to 
execution. — Where  the  judgment  debtor  fails  to  appear 
after  being  personally  served  with  notice  to  that  effect, 
or  when  appearing,  fails  to  make  full  answers  to  all 
proper  interrogatories  propounded  to  him,  he  is  guilty 
of  contempt  and  may  be  arrested  and  imprisoned  until 
he  complies  with  the  requirements  of  the  law  in  that  re- 
spect, and  if  any  person,  party  or  witness,  disobey  an 
order  of  the  court,  or  judge,  or  referee,  duly  served,  such 
person,  or  party,  or  witness,  may  be  punished  for  con- 
tempt.22 And  this  statute  has  been  held  constitutional.23 

is  Code,  Sees.  19,  20.  Edwards,  67-619;  Reardon  v.  Hen- 

is  Code,   Sec.   3611.  ry,  82-134;  Estey  v.  Fuller  Imple- 

20  Code,  Sec.  3954;   see  W.,  I.  &      ment  Co.,  82-678. 

N.  Ry.  Co.  v.  Given,  69-581;  Allen  23  Eikenberry    v.    Edwards.    67- 

v.  Allen,  72-502.  619;    Farmer  v.  Hoffman,   67-678; 

21  State  v.  Baldwin,  57-266.  Marriage  v.  Woodruff,  77-291. 

22  Code,  Sec.  4082;  Eikenberry  v. 


§§  993, 994, 995, 996.]  CONTEMPTS.  211 

§  993.  Of  contempts  in  equitable  proceedings.— 
In  actions  by  equitable  proceedings  brought  after  the 
rendition  of  a  judgment,  to  subject  property  belonging 
to  the  defendant  to  the  satisfaction  of  such  judgment,  the 
court  may  enforce  full  and  explicit  discoveries  in  an- 
swers in  such  cases  by  process  of  contempt.24 

§  994.  Of  contempts  in  violation  of  injunctions. — 
Where  a  party  is  arrested  for  the  violation  of  an  injunc- 
tion and  fails  to  file  an  affidavit,  denying  or  sufficiently 
excusing  the  contempt,  and  fails  or  refuses  to  give  bond 
with  surety  for  his  appearance  at  next  term  of  court  and 
for  his  future  obedience  to  the  injunction,  he  may  be  pun- 
ished for  contempt.25  In  proceedings  for  contempt  for 
violating  an  injunction,  the  court  will  take  judicial  no- 
tice of  its  own  order  granting  it,  and  the  sheriff's  return 
is  sufficient  evidence  of  its  service.26 

§  995.  Of  contempts  in  habeas  corpus  proceed- 
ings.— A  willful  failure  on  the  part  of  the  defendant  in 
a  habeas  corpus  proceeding  to  appear  after  service,  and 
answer  said  petition,  is  a  contempt.27  So  disobedience  to 
any  order  of  discharge  subjects  the  defendant  to  attach- 
ment for  contempt.28 

§  996.  Of  contempts  for  failure  to  obey  a  sub- 
poena.^— Failure  to  obey  a  valid  subpoena  without  a  suffi- 
cient cause  or  excuse,  or  a  refusal  to  testify  after  appear- 
ance, is  a  contempt.29  The  purchaser  of  intoxicating  liq- 
uors can  not  refuse  to  testify  on  the  ground  that  his  testi- 
mony would  criminate  him.30  Nor  can  the  agent  of  an  ex- 
press company  refuse  to  produce  certain  books  of  the  cor- 
poration before  the  grand  jury  for  the  purpose  of  show- 
ing that  said  company  had  transported  intoxicating 
liquors  contrary  to  law.31 

24  Code,  Sec.  4088.  27  Code,  Sec.  4444. 

25  Code,   Sees.    4373,   4374,    4375,          28  Code,  Sec.  4457. 
4376,  4372;  Jordan  v.  Circuit  Court,          29  Code,  Sec.  4664. 

69-177;  Benson  v.  Connors,  63-670;  so  Wakeman    v.    Chambers,    69- 

McLane  v.  Granger,  74-152;  Fisher  169. 

v.  Cass  County  Dist.  Court,  75-232;  si  u.    S.   Ex.   Co.   v.    Henderson, 

Silvers  v.  Traverse,  82-52.  69-40. 

26  Jordan  v.  Circuit  Court,  69-177. 


CONTEMPTS.  [§§  997, 998. 

§  937,  Of  acts  which  are  not  considered  con- 
tempts.—  The  publication  of  articles  in  a  newspaper  re- 
flecting upon  the  conduct  of  a  judge  in  respect  to  causes 
pending  in  his  court,  and  which  were  disposed  of  before 
the  publication,  or  the  publication  of  the  evidence  and 
arguments  of  counsel  in  a  case  undisposed  of,  or  where 
there  w^as  no  rule  of  court  against  such  publication,  how- 
ever unjust  and  libelous  the  publication  may  be,  do  not 
amount  to  contemptuous  or  insolent  behavior  toward  the 
court,  nor  are  they  so  calculated  to  impede  the  merits  or 
to  obstruct  the  court  in  the  administration  of  law  as  to 
justify  a  punishment  of  the  offender  for  contempt.32 

The  court  has  no  authority  to  order  a  party  to  deliver 
to  the  sheriff  the  key  of  a  safe  the  contents  of  which  the 
party  claims  as  his  own  property,  and  punish  him  for 
contempt  for  failure  so  to  do.33 

The  visiting  committee  of  an  insane  hospital  has  no 
authority  under  the  law  to  punish  a  witness  for  con- 
tempt for  refusing  to  testify  when  summoned  before  it.34 

A  person  is  not  bound  to  make  an  affidavit  which  is 
sought  only  as  information  on  which  to  base  a  civil 
action,  and  when  subpoenaed  by  a  justice  of  the  peace  to 
do  so,  and  he  disobeys  the  subpoena,  he  can  not  be  pun- 
ished for  contempt.35 

§  998.  Of  the  punishment  for  contempts. — Con- 
tempts may  be  punished  by  fine  or  imprisonment,  or  both, 
but  where  not  otherwise  specially  provided,  courts  of 
record  are  limited  to  a  fine  of  fifty  dollars  and  imprison- 
ment not  exceeding  one  day;  and  all  other  courts  are 
limited  to  a  line  of  ten  dollars.36  But  where  a  contempt 
consists  in  an  omission  to  perform  an  act  which  is  yet 
in  the  power  of  the  person  to  perform,  he  may  be  im- 
prisoned until  he  performs  it,  and  in  such  case  the  act  to 
be  performed  must  be  specified  in  the  warrant  of  commit- 
ment.37 Unless  the  contempt  is  committed  in  the  imme- 

32  Dunham  v.  State,  6-245;  State  ss  Dudly  v.  McCord,  65-671;   see 

V.  Anderson,  40-207.  Robb  v.  McDonald,  29-330. 

ss  State  v.  Start.  7-501.  ss  Code,  Sec.  4462. 

s-t  Brown  v.  Davidson,  59-461.  ST  Code,  Sec.  4463. 


§  998.]  CONTEMPTS.  213- 

diate  view  and  presence  of  the  court,  or  comes  officially 
to  its  knowledge,  an  affidavit  showing  the  nature  of  the- 
prosecution  is  necessary  as  a  basis  for  further  action  im 
the  premises.38  But  such  affidavit  need  not  show  that 
the  affiant  has  personal  knowledge  of  the  acts  constitut- 
ing the  alleged  contempt.39  And  where  information  is 
filed  before  a  court  for  the  violation  of  an  injunction 
granted  by  the  same  court  the  information  under  oath 
is  a  compliance  with  this  requirement  of  the  statute.40 

Unless  the  offender  is  already  in  the  presence  of  the 
court,  before  he  can  be  punished  for  contempt,  he  must 
be  served  personally  with  a  rule  to  show  cause  against 
the  punishment,  and  a  reasonable  time  given  him  there- 
for, and  if  he  appear  and  attempt  to  show  such  cause,  he 
thereby  waives  any  irregularity  in  the  rule  to  show 
cause.41  Or  he  may  be  brought  before  the  court  forth- 
with, or  on  a  given  day,  by  warrant  if  necessary;  in 
either  case  he  may,  at  his  option,  make  a  written  explana- 
tion of  his  conduct  under  oath,  which  must  be  filed  and 
preserved.42  A  witness  is  liable  to  a  party  by  whom  he 
was  subpoenaed  for  all  the  consequences  of  his  delin- 
quency, together  with  fifty  dollars  additional  damages.43 
The  rule  to  show  cause  above  spoken  of  may  be  in  the 
following  form: 

FORM  OF  RULE  TO  SHOW  CAUSE  AGAINST  PUNISHMENT  FOR 

CONTEMPT. 
The  State  of  Iowa. 

To  the  sheriff  of county,  greeting: 

Whereas  on  the day  of ,  18 ,  a  subpoena  issued  from 

the  district  court  of  the  State  of  Iowa,  in  and  for  county,  at 

the  instance  of  ,  commanding  to  be  brought  before  said 

court  at  the  court  house,  in  ,  on  the  day  of ,  18 — , 

at o'clock  —  M.,  on  said  day,  then  and  there  to  testify  and  give 

evidence  in  behalf  of  the  plaintiff  (or  defendant)  in  an  action  pending 

'  ss  Code,  Sec.  4464;  State  v.  Start,  15-425;  Russell  v.  French,  67-102; 

7-501;  Silvers  v.  Traverse,  82-52.  Jordan  v.  Circuit  Court,  69-177; 

39  Jordan  v.  Circuit  Court,  69-  Hogue  v.  Hayes,  53-377;  State  v. 

177.  Baldwin,  57-266;  Wise  v.  Chaney, 

^o  Silvers  v.  Traverse,  82-52.  67-73;  McDonnell  v.  Henderson,  74- 

41  Manderchied  v.  District  Court,  619. 

69-240.  «  Code,  Sec.  4664. 

42  Code,  Sec.  4465;  State  v.  Duffy, 


214  CONTEMPTS.  [§  998. 

in  said  court  wherein  was  plaintiff  and  was  defendant, 

which  subpoena  was  duly  served  by  ,  sheriff  of  county. 

Iowa,  on  the  said  on  the  day  of  ,  18 — ,  and  his 

traveling  and  his  attendance  fees  then  paid  him  (if  no  fees  were  de- 
manded it  should  so  state),  and  whereas  on  the day  of  , 

18 — ,  on  motion  of  the  plaintiff  (or  defendant  as  the  case  may  be), 
the  said being  solemnly  called  to  come  into  court  and  give  evi- 
dence in  behalf  of  the  plaintiff  (or  defendant)  according  to  said  sub- 
poena, came  not,  but  made  default.  You  are  therefore  hereby  com- 
manded to  make  known  to  the  said  ,  that  he  be  and  appear 

before  the  said  court  on  the  day  of ,  18 — ,  to  show  cause, 

if  any  he  has,  why  he  should  not  be  punished  according  to  law  for  a 
contempt  of  court. 

In  witness  whereof  I  have  hereunto  subscribed  my  hand  and  fixed 

the  seal  of  said  court  this day  of ,  18 — . 

[Seal.]  ,  clerk. 

Where  the  attachment  is  issued  to  bring  the  witness 
forthwith  the  above  form  should  be  modified  as  follows : 


"You  are,  therefore,  hereby  commanded  to  attach  the  said 


and  have  his  body  before  said  court  forthwith  to  answer  for  a  con- 
tempt in  not  appearing  to  testify  in  obedience  to  said  subpoena." 

The  return  of  the  subpoena  and  the  failure  of  the  wit- 
ness to  appear  when  called,  brings  the  matter  officially 
before  the  court,  except  where  the  subpoena  is  served  by 
leaving  a  copy  together  with  the  fees  at  the  witness' 
usual  place  of  residence,  in  which  case  he  is  not  liable 
for  a  contempt,  unless  it  is  shown  by  affidavit  that  the 
copy  with  the  proper  fees  came  into  his  hands  in  time  for 
him  to  appear  and  testify  in  the  case.44 

When  the  witness  is  brought  before  the  court,  either 
by  rule  to  show  cause,  or  an  attachment,  and  he  fails 
to  purge  himself  of  the  contempt,  he  may  be  committed 
to  jail.  The  following  form  of  warrant  of  commitment 
may  be  used: 

FORM  OP  WARRANT  OP  COMMITMENT. 

State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas  on  the  day  of  ,  18—,  by  an  order  made  by 

the  district  court  of  county,  Iowa,  was  convicted  of  a 

«  Code,  Sec.  4465. 


§  998.]  CONTEMPTS.  215 

contempt  of  court  for  disobedience  of  a  lawful  process  of  said  court 
(or  refusing  to  testify  as  a  witness  in  a  certain  action),  and  it  was 
then  ordered  by  the  court  that  (here  insert  judgment  or  order  as  in 
record  of  conviction).  Now,  therefore,  you  are  commanded  that  you 

take  the  body  of  said  ,  and  him  safely  keep  in  your  custody  in 

the  county  jail  (or  some  other  place,  as  the  case  may  be)  for  the 
period  of  (as  in  the  record  of  conviction),  (in  case  of  refusal  to  testify 

state  as  follows:  "until  he,  the  said ,  shall  express  a  willingness 

to  testify  and  give  his  evidence  in  a  certain  cause  (naming  it),  and 
when  he  shall  express  his  willingness  to  do  so,  that  you  forthwith 
bring  him  into  court")  or  until  he  shall  be  legally  discharged. 

In  witness  whereof  I  have  hereunto  fixed  my  hand  and  seal,  this 

day  of ,  18 — . 

[Seal.]  ,  clerk. 

The  record  of  conviction  for  contempt  may  be  in  the  fol- 
lowing form: 

FORM  OF  RECORD  OF  CONVICTION  FOR  CONTEMPT. 

Title,    ) 
Venue.  ) 

Be  it  remembered,  that  heretofore,  to  wit,  (date  of  service  of  sub- 
poena), a  writ  of  subpoena,  issued  from  this  court,  was  duly  served  on 
the  defendant ,  commanding  him  to  appear  on  a  certain  day  there- 
in named  and  testify  in  an  action  pending  in  this  court,  wherein • 

was  plaintiff  and  was  defendant,  on  part  of  said  plaintiff,  and 

his  fees  paid  him  (or  state  the  fact);  and  be  it  further  remembered, 

that  on  the day  of A.  D.  18 — ,  said being  called  to 

come  into  court  and  testify  according  to  said  subpoena,  came  not  but 

made  default;   and  be  it  further  remembered,  that  on  the  day 

of A.  D.  18 — ,  on  motion  of  the  said ,  it  was  ordered  that 

a  rule  of  court  issue  forthwith   (or  a  warrant,  as  the  case  may  be), 

requiring  said  to  appear  on   (state  time  of  appearance),  and 

show  cause,  if  any  he  had,  why  he  should  not  be  punished  for  a  con- 
tempt of  court  in  disobeying  said  writ  of  subpoena,  which  rule  was 

duly  issued  and  served  on  the  said  .    And  now,  at  this  day,  to 

wit  (date)   the  said  appearing  in  person,  and  by  counsel,  and 

failing  to  show  sufficient  excuse  for  disobeying  the  said  writ  of  sub- 

pcena,  it  is  considered  and  adjudged  that  the  said  is  guilty  of 

a  contempt  of  this  court,  and  it  is  therefore  ordered  and  adjudged  that 

he  pay  a  fine  of dollars,  and  that  he  be  imprisoned  in  the  county 

jail  of county, days  and  pay  the  costs  of  this  proceeding, 

(if  the  contempt  is  for  refusing  to  testify,  the  fact  must  be  recited 
accordingly,  and  the  order  should  in  that  case,  after  the  record  im- 
posing the  fine,  if  any,  direct  as  follows:  "and  it  is  further  ordered,  that 

the  said be  imprisoned  in  the  county  jail  until  he  shall  express 

his  willingness  to  testify  and  give  evidence  in  said  cause,")  and  that 
a  warrant  issue  for  the  execution  of  this  order. 


216  CONTEMPTS.  [§§  999, 1000. 

The  foregoing  forms,  with  proper  modifications,  which 
will  easily  suggest  themselves,  can  be  used  in  any  case  of 
contempt. 

Where  the  offender  is  committed,  the  warrant  must 
state  the  particular  facts  and  circumstances  on  which  the 
court  acted  in  the  premises,  and  whether  the  same  were 
in  the  knowledge  of  the  court,  or  were  proved  by  the  wit- 
nesses.45 

§  999.  The  preservation  of  the  evidence. — Where 
the  action  is  founded  upon  evidence  given  by  others,  such 
evidence  must  be  in  writing,  and  be  filed  and  preserved, 
and  if  the  court  act  upon  its  own  knowledge  in  the  prem- 
ises, a  statement  of  the  facts  upon  which  the  order  is 
founded  must  be  entered  on  the  records  of  the  court,  or  be 
filed  and  preserved  when  the  court  keeps  no  record,  and 
will  be  a  part  of  the  record.46  If  the  evidence  is  taken  in 
shorthand  but  the  notes  are  not  filed  or  certified  by  the 
judge,  nor  any  transcript  of  them  filed  in  the  case,  the 
commitment  will  be  erroneous.47  If,  however,  the  notes 
were  left  on  the  clerk's  desk  the  same  day  the  order  is 
made,  it  will  be  sufficient.48 

§  1000.  Of  the  trial,  pleadings,  evidence,  etc. — Pro- 
ceedings to  punish  for  contempt  are  in  their  nature  crim- 
inal, and  are  not  entitled  in  the  case  wherein  the  contempt 
occurs.49 

A  party  in  contempt  by  failure  to  comply  with  a  rule 
awarded  against  him  may  be  refused  leave  to  plead  until 
he  has  purged  himself  of  the  contempt.50 

A  writ  of  attachment  against  an  officer  for  contempt 
should  run  against  him  in  his  individual  name.51 

It  is  error  without  prejudice  to  permit  oral  evidence  to 
be  given  in  a  hearing  for  contempt,  if  the  action  of  the 

«  Code,  Sec.  4467;  Goetz  v.  Stuts-  Dorgan  v.  Granger,  76-156;   Small 

man,  73-693.  v.  Wakefield,  84-533. 

49  Code,  Sec.  4466;  State  v.  Utley,  4T  Dorgan  v.  Granger,  76-156. 

13-593;   Skiff  v.  State,  2-550;  State  **  £!?«  Wak*Jeld.  f4'533-  . 

v.  Dougherty,  32-261;  State  v.  Ful-  ^  First  Cong'  Ch"  v"  Muscatme. 

som,   34-583;    State  v.   White,    34-  r.o'saylor  v.  Mockbie,  9-209. 

583;    Lutz  v.   A  ylesworth,    66-629;  si  state,  etc.,  v.  Smith,  9-334. 


§§  1001,  1002.]  CONTEMPTS.  217 

court  is  sufficiently  supported  by  affidavit.52  If  one 
charged  with  contempt  and  duly  notified  to  appear,  fails 
to  do  so,  and  the  evidence  on  which  he  is  found  guilty 
is  taken  in  his  absence,  he  can  not  object  that  it  was 
taken  ex  parte.53 

Where  the  hearing  was  had  before  a  judge,  and  a  party 
committed  for  contempt,  the  judge  must  preserve  and  file 
the  statement  of  facts  on  which  the  order  was  founded; 
but  where  all  the  proceedings  were  taken  down  by  a 
shorthand  reporter  and  his  notes  were  extended  and 
filed,  and  the  transcript  thus  preserved  contained  a 
statement  of  all  the  necessary  facts,  it  was  held  a  suffi- 
cient compliance  with  the  statute.54 

A  judgment  in  contempt  that  the  defendant  should 
pay  a  fine  and  stand  committed  until  it  was  satisfied, 
should  specify  the  extent  of  the  imprisonment,  which 
can  not  exceed  one  day  for  every  three  and  one  third 
dollars.55 

A  proceeding  against  a  corporation  is  necessarily  per- 
sonal; while  the  corporation  can  not  be  imprisoned, 
those  acting  in  its  aid  in  violating  an  injunction  ntay  be.56 
A  person  may  show  as  an  excuse  for  disobedience  of  an 
order  of  the  court,  that  a  compliance  with  such  order 
was  impossible;  he  is  not  bound  to  appeal.57  A  proceed- 
ing for  contempt  in  disobeying  an  injunction  in  selling 
intoxicating  liquors  may  be  entitled  the  same  as  the  ac- 
tion in  which  the  injunction  issued.58 

§  1001.  Of  appeals. — No  appeal  lies  from  an  order 
to  punish  for  contempt,  but  in  proper  case  the  proceed- 
ings may  be  taken  to  a  higher  court  for  revision  by  cer- 
tiorari.59 

§  1002.  Punishment  for  contempt  not  a  bar  to  an 
indictment. —  Punishment  for  contempt  constitutes  no 

02  State  v.  Meyers,  44-580.  ss  Manderchied  v.  District  Court, 

53  .Jordan  v.  Circuit  Court,  69-177.  69-240. 

64  Lutz  v.  Aylesworth,  66-629.  *<>  Code,    Sec.    4468;    First   Cong, 

ss  State  v.  Meyers,  44-580;    Jor-  Ch.  v.  Muscatine,  2-69;  Dunham  v. 

dan  v.  Circuit  Court.  69-177.  State,  6-245;  Henry  v.  Ellis,  49-205; 

aa  Ex  parte  Holman,  28-88.  Lindsay  v.  Clayton  Dist.  Court,  75- 

"  Hogue  v.  Hayes,  53-337.  509;     Currier  v.    Mueller,    79-316; 

State  v.  Dist.  Court,  S-1-1C7. 


218  CONTEMPTS.  [§  1002. 

bar  to  an  indictment,  but  if  the  offender  is  indicted  and 
convicted  for  the  same  offense,  the  court,  in  passing  sen- 
tence, must  take  in  consideration  the  punishment  before 
inflicted.60 

Any  officer  authorized  to  punish  for  contempt  is  a 
court  within  the  meaning  of  the  law.61 

It  is  held  that  a  judge  may  in  vacation  punish  for  con- 
tempt.62 

eo  Code,  Sec.  4469.  «a  State  v.  Meyers,  44-580. 

ei  Code,  Sec.  4470. 


CHAPTER  LXII. 

OF  CHANGING  THE  NAMES  OP  PERSONS. 

Sec.  1003.  Of  power  to  change  the  names  of  persons. 

1004.  Of  the  petition. 

1005.  Of  the  order. 

1006.  When  the  change  takes  effect. 

1007.  Of  the  notice. 

Section  1003.  Of  power  to  change  the  names  of 
persons. — The  district  or  superior  court  has  power  to 
change  the  names  of  persons,  in  the  manner  hereinafter 
stated.1 

§  1004,  Of  the  petition. — A  person  desiring  to  change 
his  name  must  file  his  petition  in  the  district  or  superior 
court  of  the  proper  county,  verified  by  his  oath,  stating 
that  he  is  a  resident  of  the  county,  and  has  for  one  year 
then  last  past  been  an  actual  resident  of  the  State.  It  must 
also  give  a  description  of  his  person,  stating,  as  accurate- 
ly as  possible,  his  age,  height,  the  color  of  his  hair  and 
eyes,  the  place  of  his  birth,  and  the  names  of  his  parents.2 

A  petition  for  this  purpose  may  be  in  the  following 
form: 

FORM  OF  PETITION  FOR  CHANGE  OF  NAME. 
Title, 
Venue. 

To  the  district  court  of  the  State  of  Iowa,  in  and  for county: 

Your  petitioner  represents  that  his  name  is  ;  that  he  is  a 

resident  of  county,  Iowa;   that  he  has  for  one  year  last  past 

been  a  bona  fide  resident  of  the  State  of  Iowa;   that  his  age  is  • 

years,   height,  feet  and  inches;    hair  ,   and  eyes 

;  that  he  was  born  in  (here  state  the  town  or  city,  and  country 

or  State  where  born) ;  that  his  parents  were  (here  give  the  names  and 
residence  of  parents) ;  that  he  is  desirous  of,  and  files  this  petition  for 

the  purpose  of  having  his  name  changed  from to  that  of . 

(Signature  of  petitioner.) 
(Add  usual  verification.) 

i  Code,  Sec.  4471.  2  Code,  Sec.  4472. 

219 


CHANGING  NAMES   OF   PERSONS.  [§§  1005-6-7. 

§  1005.  Of  the  order. — Upon  the  above  petition  the 
court  will  make  an  order  of  record,  giving  a  description 
of  the  applicant,  as  set  forth  in  his  petition,  the  new 
name  given,  and  fix  the  time  at  which  the  change  shall 
take  effect,  which  shall  not  be  less  than  thirty  days  there- 
after, and  directing  in  what  newspaper  of  general  circula- 
tion in  the  county  notice  of  such  change  shall  be  pub- 
lished.3 

The  order  changing  the  name  may  be  in  the  following 
form: 

FORM  OF  ORDER  CHANGING  NAME  OF  A  PERSON. 

In  the  matter  of  the  petition  of for  a  change  of  name. 

Be  it  remembered  that  on  this day  of  ,  18 — ,  the  pe- 
tition of for  a  change  of  name  came  on  for  hearing  before  the 

court,  and  the  court  being  satisfied  that  the  statute  in  such  cases  made 
and  provided  has  in  all  respects  been  complied  with  by  the  said  —  — , 
it  is  therefore  ordered  that  the  prayer  of  the  said  applicant,  who  is 

named  in  said  petition  as ,  and  described  as  —       —  years  of  age, 

feet  and inches  in  height,  and hair  and  eyes  —     — , 

and  that  he  was  born  in (town  or  city)  in  — (here  insert 

State  or  country  where  born),  that  his  parents  were  (here  give  name  and 
residence  of  parents),  be  granted;  that  the  said  applicant's  name  be 

changed  from  to  ,  and  that  he  shall  hereafter  be  known 

in  law  and  in  fact  by  the  name  of  from  and  after  the  - 

day  Of >  ig — .     And  it  is  further  ordered  and  directed  that  notice 

of  this  order  and  of  the  change  of  name  of  said  applicant  be  published 
in  (here  insert  name  of  newspaper)  a  newspaper  of  general  circulation 

in  county,  for  four  consecutive  weeks  previous  to  the  taking 

effect  of  the  change  of  name  hereby  ordered. 

§  1008.  When  the  change  takes  effect. — Previous 
to  the  time  prescribed  for  the  taking  effect  of  such 
change  of  name,  the  applicant  must  cause  notice  thereof 
to  be  published  for  four  consecutive  weeks  in  the  paper 
ordered  by  the  court.4 

§  1007.  Of  the  notice. — The  notice  mentioned  in  the 
above  section  may  be  in  the  following  form: 

FORM  OF  NOTICE  OF  CHANGE  OF  NAME. 

Notice  is  hereby  given  that  on  the  day  of ,  18 — ,  an 

order  was  made  by  the  district  court  of county,  Iowa,  by  which 

the  name  of  a  person  described  as  being  years  of  age   (here 

»  Code,  Sec.  4473.  *  Code,  Sec.  4474. 


§  1007.]  CHANGING  NAMES   OF   PERSONS.  221 

insert  same  description  as  in  petition  and  order)  was  changed  from 

to  that  of  -      — ,  and  that  said  change  will,  by  order  of  said 

court,  take  effect  on  and  after  the day  of ,  18—. 

(Signature.) 

On  the  filing  in  the  office  of  the  clerk  of  said  court  of 
the  ordinary  proof  of  such  publication,  and  on  the  clay 
fixed  by  the  court  in  said  order,  the  change  of  name  will 
be  complete. 

The  proof  of  publication  above  mentioned  must  be  pre- 
served by  the  clerk.5 

The  clerk  should  make  a  complete  record  of  all  the 
proceedings  in  such  cases,  to  the  end  that  it  may  always 
appear  that  every  step  required  by  statute  has  been 
properly  taken. 

A  change  in  the  name  of  a  partnership  does  not  have 
the  effect  to  revoke  or  annul  an  agency  conferred  upon 
it,  when  the  firm  under  the  new  name  is  composed  of  the 
same  persons  as  that  under  the  old  one.6 

e  Code,  Sec.  4475.  «  Billingsley  v.  Dawson,  27-210. 


CHAPTER.  LXIIL 

OF  DIVORCE,  ANNULLING  MARRIAGES  AND  OF  ALIMONY. 

Sec.  1008.  Of  jurisdiction  and  trial. 

1009.  Of  the  grounds  for  a  divorce  generally. 

1010.  Of  adultery. 

1011.  Of  desertion. 

1012.  Of  conviction  for  a  felony. 

1013.  Of  habitual  drunkenness 

1014.  Of  inhuman  treatment. 

1015.  Of  condonation  and  misconduct  of  the  plaintiff. 

1016.  Of  the  petition. 

1017.  Of  cross-petition,  etc. 

1018.  Of  temporary  alimony. 

1019.  Of  attachment  and  injunction. 

1020.  Of  attorney's  fees. 

1021.  Of  the  custody  of  children. 

1022.  Of  allowance  of  permanent  alimony  without  divorce. 

1023.  Of  the  power  to  grant  permanent  alimony. 

1024.  When  an  allowance  of  alimony  is  proper. 

1025.  Of  allowing  specific  property. 

1026.  Of  the  lien  of  the  judgment. 

1027.  Of  setting  aside  the  decree  and  of  its  modification,  etc. 

1028.  Of  the  causes  for  annulling  marriages. 

1029.  Of  the  petition,  etc. 

1030.  Of  the  legitimacy  of  children,  etc. 

Section  1008.     Of  the  jurisdiction  and  trial. — The 

district  court  in  the  county  where  either  party  resides, 
has  jurisdiction  of  the  subject-matter  relating  to  granting 
divorces,  annulling  marriages  and  allowing  alimony.1 
The  action  is  not  local  but  transitory,  and  the  court  being 
satisfied  of  the  residence  of  the  plaintiff  may  try  the 
case  regardless  of  the  residence  of  the  defendant.2  But 
the  residence  required  of  the  plaintiff  is  a  legal,  not 
merely  an  actual  residence,3  and  a  mere  temporary  so- 

1  Code,  Sec.  3171.  s  Hinds  v.  Hinds,  1-36. 

2  Smith  v.  Smith,  4  G.  Gr.,  266. 

222 


§  1008.]  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  223 

journ  for  a  season  without  the  intention  of  making  the 
place  his  domicile  is  not  sufficient  to  constitute  residence 
within  the  meaning  of  the  statute.4  A  Utah  divorce  ob- 
tained without  jurisdiction  or  where  neither  party  re- 
sided within  the  Territory,  is  absolutely  void.5  In  a  pro- 
ceeding for  a  divorce  the  law  recognizes  the  husband 
and  wife  as  having  separate  domiciles,  hence  a  divorce 
may  be  granted  in  an  action  brought  in  a  county  where 
either  of  them  resides.6  When  an  action  for  a  divorce 
is  brought  in  one  State  by  the  husband  against  the  wife, 
who  resides  in  another  State,  and  jurisdiction  is  acquired 
by  publication,  the  court  may  declare  the  status  of  the 
parties,  and  grant  the  decree,  but  can  not  make  a  valid 
decree  as  to  the  custody  of  the  children,  who  are  non- 
residents of  the  State  where  the  divorce  proceedings 
were  had.7  But  if  the  children  were  within  the  jurisdic- 
tion of  the  court  when  the  decree  wTas  granted,  though 
granted  in  another  State,  it  will  be  treated  as  conclusive 
and  binding  upon  the  courts  of  this  State,  when  the  right 
to  the  custody  of  such  children  is  called  in  question  in 
this  State,  until  such  decree  is  modified,  reversed  or  set 
aside  for  cause  shown  to  the  jurisdiction  rendering  it8 
The  legislature  has  no  powder  to  grant  divorces.9  A  di- 
vorce granted  in  the  State  of  Nebraska  in  accordance 
with  its  laws  and  on  notice  by  publication  against  a  resi- 
dent of  this  State  is  valid.10  A  want  of  jurisdiction  of  a 
court  to  grant  a  divorce,  owing  to  the  non-residence  of 
the  plaintiff,  can  not  afterward  be  interposed  by  such 
plaintiff  as  an"  objection  to  the  decree,  when  it  appears 
that  she  authorized  the  cause  to  be  prosecuted  and  re- 
ceived the  money  which  was  allowed  as  alimony.11  It 
may  be  established  by  parol  evidence  that  a  decree  of 
divorce  granted  in  another  State  is  void  for  want  of 
jurisdiction  under  the  laws  of  such  State.12  A  supple- 

4  Smith  v.  Smith,  4  G.  Gr.,  266;  9  Const.  Art.  3,  Sec.  27;  see  Lev- 

Whitcomb    v.    Whitcomb,    46-437;  ins  v.  Sleator,  2  G.  Gr.,  604. 

see  Rush  v.  Rush,  48-701.  10  Van  Orsdal  v.  Van  Orsdal,  67- 

s  State  v.  Fleak,  54-429.  35. 

e  Kline  v.  Kline,  57-386.  "  Ellis  v.  White,  61-644. 

7  Kline  v.  Kline,  57-386.  12  Neff  v.  Beauchamp,  74-92. 

s  Wakefield  v.  Ives,  35-238. 


224:  .          DIVORCE,    ANNULLING    MARRIAGES,    ETC.   [§§  1009-10. 

mental  decree  as  to  alimony  in  the  court  of  another  State 
under  a  decree  of  divorce  previously  rendered  in  that 
State  will  be  recognized  in  this  State.13  The  action  must 
be  prosecuted  by  equitable  proceedings  and  no  cause  of 
action,  except  for  alimony,  can  be  joined  with  it,14  and 
the  action  is  triable  de  novo  in  the  supreme  court,15  and 
the  appearance  term  is  the  trial  term.16  Divorce  cases 
must  be  tried  in  open  court;  they  can  not  be  tried  by  a 
referee,  but  the  testimony  may  be  taken  by  a  commis- 
sioner and  the  cause  tried  in  open  court.17  The  verifica- 
tion of  the  petition  is  not  jurisdictional,  but  the  action 
must  be  prosecuted  by  the  injured  party  in  his  personal 
capacity,  and  it  cannot  be  instituted  by  a  guardian  of 
one  of  the  parties.18  A  divorce  can  not  be  granted  by 
consent  of  parties  unless  proper  grounds  are  shown  for 
a  divorce.19 

§  1009.  Of  the  grounds  for  a  divorce  generally. — A 
divorce  can  only  be  granted  for  some  of  the  causes  stated 
in  the  statute.20  Hence  a  divorce  can  not  be  granted  for 
impotency,  insanity  or  idiocy.21  A  decree  of  divorce  is 
an  adjudication  of  all  causes  for  divorce  existing  at  the 
time  it  is  rendered.22  The  violation  of  an  antenuptial 
contract  is  not  a  ground  for  a  divorce.23 

§  1010.  Of  adultery. — In  order  to  establish  adultery 
it  is  not  necessary  to  prove  the  fact  of  the  adultery,  but 
it  may  be  inferred  from  the  circumstances.  If  the  cir- 
cumstances, when  all  taken  together,  tend  to  establish 
the  criminal  disposition  of  the  party  charged  with  adul- 
tery and  a  like  disposition  of  the  particeps  criminis  and 
an  opportunity  to  commit  the  act,  it  will  ordinarily  be 
sufficient  to  warrant  the  inference  that  the  act  was,  in 
fact,  committed,  and  especially  so  when  the  acts  of  the 

is  Alderson  v.  Alderson,  84-198.  is  Code,  Sec.  3781;  Lyster  v.  Lys- 

n  Code,  Sec.  3430.  ter,  1-130. 

is  Sherwood  v.  Sherwood,  44-192.  20  Miller  v.  Miller,  43-325;   York 

is  Code,  Sec.  3656.  v.  Ferner,  59-487;  see  McCraney  v. 

IT  Hobart     v.     Hobart,     45-501;  McCraney,  5-232. 

Code,  Sec.  3173.  21  Wertz  v.  Wertz,  43-534. 

is  Mohler  v.  Shanks  Estate,  93-  22  Rivers  v.  Rivers,  65-568. 

273;  see  Van  Duzer  v.  Van  Duzer,  23  Owen  v.  Owen,  90-365. 
65-625. 


§  1011.]  DIYOECE,   ANNULLING    MARKIAGES,    ETC.  225 

parties  are  inconsistent  with  any  rational  theory  of  in- 
nocence.24 And  when  a  wife  deserts  her  husband  with- 
out reasonable  cause,  and  before  she  has  been  absent 
long  enough  to  entitle  him  to  a  divorce,  he  commits  adul- 
tery, she  is  entitled  to  a  divorce  and  to  alimony.25  While, 
as  a  general  rule,  the  adultery  of  plaintiff  in  an  action 
for  a  divorce  will  bar  her  from  procuring  a  divorce  on 
the  ground  of  a  like  crime  committed  by  the  defendant, 
yet  where  the  marriage  of  plaintiff,  which  is  claimed  to 
be  adulterous,  was  contracted  in  ignorance  of  the  fact 
that  the  first  husband,  the  defendant,  was  alive,  and  he 
had  not  in  fact  been  heard  from  for  many  years,  such 
second  marriage  was  held  not  to  defeat  her  action 
against  the  defendant  for  a  divorce.26  Adultery  com- 
mitted after  the  marriage  is  one  of  the  statutory  grounds 
for  a  divorce.27 

§  1011.  Of  desertion. — A  divorce  may  be  granted  one 
party  to  the  marriage  when  the  other  willfully  deserts 
him  or  her,  as  the  case  may  be,  and  absents  himself  with- 
out a  reasonable  cause,  for  two  years.28  And  a  reason- 
able cause  is  said  to  be  such  cause  as  would,  prima  facie, 
entitle  the  party  so  deserting  to  a  divorce.29  But  where 
the  separation  was  mutually  agreed  upon,  neither  party 
is  entitled  to  a  divorce  on  the  ground  of  absence  of  the 
other,  until  such  party  offers  to,  and  expresses  a  willing- 
ness to  live  with  the  other,  and  such  offer  must  appear 
to  be  made  in  good  faith.30  And  in  an  application  for  a 
divorce  on  the  ground  of  desertion,  the  petition  must 
state  that  such  desertion  was  without  reasonable  cause.3' 
For  a  discussion  as  to  what  will  constitute  desertion, 
reference  is  made  to  the  cases  cited.32 

2*Inskeep     v.     Inskeep,     5-204;  221;     Taylor     v.     Taylor,     80-29; 

Names  v.  Names,  67-383;  see  Hag-  Packard  v.  Packard,  90-765;   Owen 

gard  v.  Haggard,  62-82;  Aitchison  v.  Owen,  90-365. 

v.  Aitchison,  68  N.  W.,  573;    Pea-  20  Pierce   v.    Pierce,    33-238;    see 

vey  v.  Peavey,  76-443;    Carlisle  v.  Douglass  v.  Douglass,  31-421;  Tay- 

Carlisle,  68  N.  W.,  681.  lor  v.  Taylor,  80-29. 

25  Dupont  v.  Dupont,  10-112.  so  Farber  v.  Farber,  64-362 

2«  Smith  v.  Smith,  64-682.  si  Pinkney     v.     Pinkney,     4     G. 

27  Code,  Sec.  3174.  Greene,  324;  Owen  v.  Owen,  90-365. 

28  Code,   Sec.   3174;    Doolittle    v.  32  Pilgrim     v.     Pilgrim,     57-370; 
Doolittle,  78-691;    Day  v.  Day,  84-  Lane   v.  Lane,   67-76;  Atkinson  v. 

Vol.  II— 15 


226  DIVOECE,    ANNULLING    MARRIAGES,    ETC.    [§§  1012-14. 

§  1012.  Of  conviction  for  a  felony. — The  statute 
makes  the  conviction  for  a  felony  after  the  marriage  of 
one  of  the  parties  to  the  marriage  contract  a  cause  for 
a  divorce.33  But  such  conviction  must  be  final,  and  a 
divorce  will  not  be  granted  on  this  ground  when  there 
has  been  a  conviction  in  the  lower  court,  and  an  appeal 
therefrom  is  pending  and  undetermined  ;34  but  where  the 
action  for  a  divorce  was  brought  pending  such  appeal 
and  a  divorce  granted,  and  the  conviction  was  afterward 
affirmed  by  the  supreme  court,  it  was  held  another  ac- 
tion for  a  divorce  might  be  brought  and  the  first  action 
would  not  be  a  bar  thereto.35 

§  1013.  Of  habitual  drunkenness. — So  a  divorce 
may  be  granted  when,  after  marriage,  one  of  the  parties 
to  the  marriage  contract  becomes  addicted  to  habitual 
drunkenness;36  and  to  constitute  one  an  habitual  drunk- 
ard it  is  not  necessary  that  the  party  be  in  that  condition 
during  business  hours.37  What  constitutes  an  habitual 
drunkard,  so  as  to  entitle  one  to  a  divorce,  has  never 
been  determined  by  our  court.38 

§  1014.  Of  inhuman  treatment. — A  divorce  may  be 
granted  when  either  party  to  the  marriage  contract  is 
guilty  of  such  inhuman  treatment  as  to  endanger  the 
life  of  the  other.39  The  question  is,  considering  the  treat- 
ment in  the  past,  is  there  reasonable  ground  to  appre- 
hend danger  to  the  life  or  health  of  the  party.40  And 
there  may  be  inhuman  treatment  endangering  life 

Atkinson,  67-364;  Doolittle  v.  Doo-  Aitchison,  68  N.  W.,  573;  Van  Du- 

little,  78-691;  Day  v.  Day,  84-221;  zer  v.  Van  Duzer,  70-614;  Doolittle 

Packard  v.  Packard,  90-765.  v.  Doolittle,  78-691;  Douglass  v. 

ss  Code,  Sec.  3174.  Douglass,  81-258;  Potter  v.  Potter, 

s*Vinsant  v.  Vinsant,  49-639;  75-211;  McKee  v.  McKee,  77-464; 

Rivers  v.  Rivers,  60-378.  Gilbertson  v.  Gilbertson,  78-755; 

35  Rivers  v.  Rivers,  65-568.  Edgerton      v.      Edgerton,      79-68; 

so  Code,  Sec.  3174.  Evans  v.  Evans,  82-462;  Tiffany  v. 

37  Wheeler  v.  Wheeler,  53-511.  Tiffany,  84-122;  Owen  v.  Owen,  90- 

ss  Wheeler  v.  Wheeler,  53-511,  365;  Coulthard  v.  Coulthard,  91- 

and  cases  cited;  Lewis  v.  Lewis,  742;  Ennis  v.  Ennis,  92-107; 

75-200.  Schlichtl  v.  Schlichtl,  88-210;  Fel- 

so  Code,  Sec.  3174;  Freerking  v.  ton  v.  Felton,  62  N.  W.,  677;  Prath- 

Freerking,  19-34.  er  v.  Prather,  68  N.  W.,  806; 

«  Beebe  v.  Beebe,  10-133;  Knight  Briggs  v.  Briggs,  71  N.  W.,  198; 

v.  Knight,  31-451;  Aitchison  v.  Hart  v.  Hart,  74-487. 


§  1015.1  DIVORCE,    ANNULLING    MARRIAGES,    ETC. 

though  no  physical  injury  is  sustained,  as  when  threats- 
to  do  injury  or  to  take  life  are  made,  coupled  with  the- 
ability  and  intent  so  to  do.41  So,  treatment  calculated 
to  affect  the  mind  of  a  party  so  as  to  destroy  her  health, 
and  ultimately  endanger  life,  or  which  involve,  by  nat- 
ural consequences,  a  permanent,  injurious  and  prejudi- 
cial effect  on  a  party,  is  sufficient  grounds  for  a  divorce,42 
and  so  is  persistent  abuse  in  the  presence  of  one's  chil- 
dren, and  in  the  presence  of  neighbors  and  others,  by 
applying  epithets  imputing  unchastity.43  As  to  what 
has  been  held  in  particular  cases  sufficient  evidence  of 
inhuman  treatment  reference  is  made  to  the  cases  cited.44 
But  inhuman  treatment  resulting  from  insanity  is  not 
ground  for  divorce.45  But  the  facts  showing  inhuman 
treatment  must  be  pleaded  and  a  general  allegation  to 
that  effect  is  not  good.46  But  the  facts  as  alleged  need 
not  be  proved;  it  will  be  sufficient  if  from  the  evidence  it 
appears  that  the  treatment  is  inhuman.47  A  wife  is  not 
entitled  to  a  divorce  on  the  grounds  of  cruel  treatment, 
endangering  her  life,  although  the  husband  admits  that 
he  struck  her  on  one  occasion,  two  years  before  they  sep- 
arated, where  he  was  generally  industrious  and  kind  to- 
his  family,  and  their  difficulties  were  largely  due  to  her 
quarrelsome  disposition  and  the  evidence  fails  to  show 
that  her  health  was  impaired  or  her  life  endangered  by 
his  conduct  towards  her.48 

§  1015.  Of  condonation  and  misconduct  of  the 
plaintiff. — If  the  inhuman  treatment  was  caused  by  the 
applicant's  own  misconduct,  no  divorce  will  be  granted.4* 
And  where  the  wife  voluntarily  has  sexual  intercourse 
with  her  husband  after  the  commencement  of  suit  for 


41  Sackrider  v.  Sackrider,  60-397;  «  Wertz  v.  Wertz,  43-534. 

42  Caruthers  v.Caruthers,  13-266;  46  Freerking  v.  Freerking,  19-34. 
Cole  v.  Cole,  23-433.  47  Cole  v.  Cole,  23-433. 

43  Wheeler    v.    Wheeler,    53-511.  *&  Felton   v.    Felton,    62   N.   W., 
44Harnett     v.     Harnett,     55-45;  677. 

Platner  v.  Platner,  66-378;   Sester-  <»  Knight  v.  Knight,  31-451;  see 

hen  v.  Sesterhen,  60-301;  Rivers  v.  Marsh  v.  Marsh,  64-667;  Edgerton. 

Rivers,  60-378;  Whaley  v.  Whaley,  v.  Edgerton,  79-68. 
68-647;   Maben    v.  Maben,    72-658; 
and  see  No.  40  above. 


228  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  [§  1016. 

Divorce,  ordinarily  it  will  be  a  condonation  of  the  act  or 
.acts  complained  of.50  But  such  is  not  the  case  where  the 
intercourse  was  involuntary.51  Nor  will  the  fact  that 
the  wife,  after  beginning  her  action  for  a  divorce,  re- 
mained in  the  same  house  with  her  husband  and  did  his 
housework,  amount  to  condonation.52 

§  1016.    Of  the  petition. — The  petition  may  be  in  the 
following  form: 

FORM  OF  PETITION  FOR  A  DIVORCE. 

Title,     ) 
Venue.   ) 

The  plaintiff  states: 

Par.  1.    That  she  is  now  and  has  been  for  the  last  (more  than  a 

year)  years  past,  a  resident  of  the  State  of  Iowa,  and  residing  at -ra\ 

in/J^j^pvcounty,  and  that  she  has  resided  at  said  place  continuously 
during  all  of  said  time  (or  if  absent  a  part  of  the  time  state  the  entire 
length  of  her  residence  in  the  State,  after  deducting  all  absences  from 
the  State). 

Par.  2.  That  the  residence  of  said  plaintiff,  as  above  stated,  has 
been  in  good  faith,  and  not  for  the  purpose  of  obtaining  a  divorce  only. 

Par.  3.  That  this  application  is  made  in  good  faith  and  for  the 
purpose  set  forth  herein. 

Par.  4.    That  plaintiff  and  defendant  were  married  at   (place)   in 

(county  and  State)  on  the day  of ,  18 — ,  and  lived  together 

as  husband  and  wife  until  the  day  of ,  18 — . 

Par.  5.  That  during  all  the  time  plaintiff  and  defendant  so  lived 
together  as  husband  and  wife,  this  plaintiff  at  all  times  conducted  her- 
self toward  her  said  husband  as  a  dutiful  and  loving  wife. 

Par.  6.    That  on  the  -       -  day  of  —     — ,  18 — ,  the  defendant,  in 
violation  of  his  marriage  vows,  and  without  any  fault  of  plaintiff,  will- 
""    fully  deserted  this  plaintiff-and  has  ever  since  absented  himself  from 
her  without  any  reasonable  or  just  cause  therefor. 

Par.   7.    That  there  was  born  to  plaintiff  and  defendant,   as  the 
issue  of  said  marriage,  a  son,  named  (here  give  his  name),  now  - 
years  of  age,  and  who  has  resided  with  plaintiff  ever  since  his  birth. 

Par.  8.     That  plaintiff  has  no  property  in  her  own  right,  and  no 
/  means  with  which  to  prosecute  this  suit,  and  her  only  means  of  main- 
taining her  said  son  and  herself  is  by  working  out  as  a  servant. 

Par.  9.    That  defendant  is  possessed  of  personal  property,  consist- 

l/    ing  of  (here  describe  it),  worth dollars,  and  has  real  estate,  un- 

incumbered,  situated  in  county,  Iowa,  worth  —     -  dollars. 

50  Harnett     v.     Harnett,     55-45;          »i  Cochran   v.    Cochran,    35-477; 
Cochran  v.   Cochran,  35-477;    Ses-      Sesterhen  v.  Sesterhen,  60-301. 
terhen   v.    Sesterhen,    60-301;    but          52  Harnett  v.  Harnett,  59-401. 
see  Douglass  v.  Douglass,  81-258; 
Lewis  v.  Lewis,  75-200. 


§  1017.]  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  229 

Wherefore  plaintiff  prays  that  she  may  be  divorced  from  the  de- 
fendant; that  she  may  be  awarded  the  custody  of  her  said  minor  son 

(naming  him);  that  she  may  be  allowed  the  sum  of  dollars  as 

temporary  alimony,  and  on  final  tearing,  the  sum  of dollars,  as 

permanent  alimony,  out  of  her  said  husband's  estate,  and  that  she 
have  judgment  for  said  alimony,  and  that  execution  issue  to  make  the 
same,  and  for  such  other  and  further  relief  as  may  be  equitable  in  the 
premises,  and  for  costs.  «o 

(The  petition  must  be  verified  by  the  applicant.) 

The  petition,  if  for  cruel  and  inhuman  treatment,  must 
set  out  the  facts  constituting  it,  as  "That  on  the  -  -  day 
of  -  — ,  18 — ,  the  defendant  drew  and  pointed  a  loaded 
revolver  at  plaintiff  and  threatened  to  take  her  life,"etc. 
It  will  be  noticed  that  some  of  the  allegations  in  the  fore- 
going form  of  petition  are  only  necessary  when  the  de- 
fendant is  a  non-resident  of  the  State;53  it  can  be  changed 
to  suit  the  circumstances  of  each  case. 

Although  the  statute  requires  the  petition  to  be  veri- 
fied, yet  if  it  is  not  verified  it  will  not  prevent  the  court 
from  having  jurisdiction  of  the  cause;  but  the  petition 
should  always  be  verified.54  But  the  fact  that  a  petition 
was  not  verified  can  not  be  urged  in  a  collateral  attack.55 

§  1017.  Of  cross-petition,  etc. — The  causes  for  di- 
vorce heretofore  mentioned  may  be  taken  advantage  of 
by  either  husband  or  wife,  and  the  husband  may  also 
obtain  a  divorce  from  his  wife  when  she,  at  the  time  of 
the  marriage,  was  pregnant  by  one  other  than  such  hus- 
band, of  which  fact  he  had  no  knowledge,  unless  such 
husband  has  an  illegitimate  child  or  children  then  living 
which  was  unknown  to  the  wife  at  the  time  of  their  mar- 
riage.56 The  defendant  may  obtain  a  divorce  in  any  case 
whore  entitled  to  it  by  filing  a  cross-petition  in  the  ac- 
tion,57 and  the  cause  of  action  thus  set  up  by  the  defend- 
ant may  be  based  on  causes  of  divorce  occurring  subse- 
quent to  the  commencement  of  the  original  action,  and 
will  be  regarded  as  a  counter  claim.58 

53  Code,  Sees.  3172,  3173.  se  Code,   Sec.    3175;     Branum   v. 

5-t  Code,  Sec.  3173;    McCraney  v.  O'Conner,  77-632. 

McCraney,    5-232;     Van    Duzer    v.  57  Code,  Sec.  3176. 

Van     Duzer,     65-625;     Mohler     v.  •"••*  Wilson      v.      Wilson,      40-230. 

Shanks  Estate.  93-273.  Code,  Sec.  3570. 

55  Ellis  v.  White,  61-644. 


230  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  [§  1018. 

§  1018.  Of  temporary  alimony. — Temporary  ali- 
mony can  not  be  allowed  without  the  fact  of  the  mar- 
riage between  the  parties  is  either  admitted  or  proved.59 
It  may  be  allowed  before  right  to  divorce  is  established.60 
But  when,  after  a  divorce,  the  parties  again  lived  to- 
gether as  husband  and  wife,  it  was  held  to  sufficiently 
establish  the  marital  relation  to  justify  granting  tem- 
porary alimony.61  /  The  judge  in  vacation  can  not  make 
an  allowance  of  temporary  alimony.62  When  the  wife 
brings  an  action  for  alimony  without  a  divorce,  a  tem- 
porary allowance  may  be  made  her  the  same  as  if  she 
sought  a  divorce.63  Orders  regarding  temporary  ali- 
mony and  for  attorney's  fees  are  not  to  be  regarded  as  a 
final  adjudication  of  the  rights  of  the  parties.64  But  tem- 
porary alimony  is  not  allowed' in  an  action  to  set  aside 
a  voidable  decree  of  divorce.65  Defendant  answering 
her  hi&band's  bill  for  divorce  alleged  that  his  conduct 
had  compelled  her  to  leave  him,  and  asked  an  allowance 
for  temporary  alimony,  plaintiff  dismissed  his  bill.  De- 
fendant moved  for  judgment  for  costs  and  attorney's 
fees,  but  annotion  by  plaintiff  to  strike  out  that  part  re- 
lating to  attorney's  fees  was  sustained,  it  was  held  that 
such  ruling  was  not  an  adjudication  of  defendant's  right 
to  attorney's  fees  when  the  matter  came  on  for  hearing 
on  the  motion  for  temporary  alimony,  and  that  the  dis- 
missal of  the  bill  did  not  deprive  the  court  of  jurisdiction 
to  inquire  as  to  defendant's  right  to  alimony.66 

The  application  for  temporary  alimony  may  be  made 
in  the  petition  or  by  motion  setting  out  the  circum- 
stances and  situation  of  the  applicant,  and  the  amount 
needed  to  pay  attorney's  fees,  witness'  fees,  and  to 
maintain  the  applicant  pending  the  proceedings,  and  if 
the  witnesses  are  to  be  brought  from  a  great  distance, 

59  Code,  Sec.  3177;  York  v.  York,  es  Finn  v.  Finn,  62-482;  Graves 
34-530;  Wilson  v.  Wilson,  49-544;  v.  Graves,  36-310;  Simpson  v. Simp- 
Smith  v.  Smith,  61-138.  son,  91-235. 

eo  Campbell  v.  Campbell,  73-482.  64  Clyde  v.  Peavy,  74-47. 

ei  McFarland  v.   McFarland,  51-  er>  Shaw  v.  Shaw,  92-722. 

565.  ee  Q'Neil  v.  O'Xeil,  69  N.  W.,  523. 

ea  Code,    Sec.    3177;    Prosser    v. 
Prosser,  64-378. 


§  1019.]  DIVORCE,    ANNULLING    MAE1UAGES,    ETC.  231 

such  fact,  and  all  other  facts  showing  the  amount  asked 
to  be  a  proper  allowance,  should  be  set  out.67  And  tem- 
porary alimony  may  be  granted  to  either  party  in  a  di- 
vorce proceeding  as  against  the  other.68  Nor  can  the 
husband  off-set  as  against  the  amount  he  is  directed  to 
pay,  the  value  of  the  household  goods  appropriated  by 
the  wife.69  The  failure  of  the  plaintiff  to  pay  temporary" 
alimony  may  be  punished  by  dismissing  the  action,  or 
striking  the  petition  from  the  files,  but  this  can  not  be 
done  when  the  defendant  fails  to  pay  money  awarded/ 
as  temporary  alimony.70 

§  1019.  Of  attachment  and  injunction. — The  peti- 
tion may  be  presented  to  the  court  or  judge  for  the  allow- 
ance of  an  order  of  attachment,  and  the  court  or  judge 
may,  by  indorsement  thereon,  direct  such  attachment 
and  the  amount  for  which  the  same  may  issue,  and  the 
amount  of  the  bond,  j^jmy,  that  shall  be  given;  and 
the  clerk  must  issue  the  same  accordingly,  and  any  prop- 
erty taken  by  virtue  thereof  will  be  held  to  satisfy  the 
judgment  or  decree  of  the  court,  but  it  may  be  discharged 
or  released  as  in  other  cases.71  But  the  provisions  of  the 
general  attachment  law  are  not  applicable  to  attach- 
ments in  divorce  cases.72  Nor  is  the  remedy  by  attach- 
ment to  restrain  the  disposition  of  the  property  of  the 
defendant  exclusive  of  that  by  injunction.73  And  the 
attachment  in  divorce  cases  may  be  levied  on  the  home- 
stead, and  it  may  Ibe  granted  in  a  suit  to  annul ^amar- 
ri;itL'(s  as  well  as  in  an  action  for  a  divorce.74  Such  an 
attachment  may  issue  to  compel  the  performance  of  an 
order  to  pay  temporary  alimony.75  A  conveyance  of 
property  made  and  accepted  with  the  purpose  of  putting 
the  property  beyond  the  reach  of  such  an  attachment  is 

67  Champlin  v.  Champlin,  42-169;  Baily,  69-77;  Allen  v.  Allen,  72-502. 

Van  Duzer  v.  Van  Dtizer,  65-625;  ?i  Code,   Sec.   3178. 

Briggs  v.  Briggs.  36-383;  Maben  v.  ?2  Smith  v.  Smith,  61-138. 

Maben,  67-284;  Miller  v.  Miller,  43-  "  Wharton  v.  Wharton,  57-696; 

325;     Peavey    v.    Peavey,    76-443;  Dullard  v.  Phelan,  83-471. 

Campbell  v.  Campbell,  73-482.  ~*  Daniels  v.  Morris,  54-369. 

es  Small  v.  Small,  42-111.  "  Van  Duzer  v.  Van  Duzer,  65- 

69  Dayton  v.  Drake,  64-714.  625. 

™  Peel  v.  Peel,  50-521;   Baily  v. 


232  DIVOECE,    ANNULLING    MARRIAGES,    ETC.[§§    1020-22. 

invalid.76  The  filing  of  a  petition  for  a  divorce  which 
asks  for  permanent  alimony  to  be  made  a  lien  upon  the 
defendant's  real  estate  will  not  of  itself  create  a  lien 
ihereon."  But  no  such  attachment  can  affect  the  lien  of  a 
creditor  of  the  husband,  whose  judgment  is  obtained 
prior  to  the  decree;  nor  can  the  decree  be  dated  back  to 
the  time  of  the  attachment,  so  as  to  cut  out  intervening 
judgments.78 

§  1020.  Of  attorney's  fees. — Attorney's  fees  may  be 
taxed  as  a  part  of  the  costs  in  favor  of  the  successful 
party,  but  can  not  be  made  a  lien  upon  the  homestead  of 
the  opposite  party.79  The  attorney  for  the  wife  may  sue 
and  recover  from  the  husband  for  his  attorney's  fees  for 
the  wife  in  a  divorce  proceeding,  nor,  in  order  to  recover, 
need  he  show  that  the  wife  was  entitled  to  a  divorce.80 
An  attorney  can,  for  services  rendered  a  client,  in  a  di- 
vorce suit,  recover  of  her  husband  only  what  the  services 
were  reasonably  wrorth  where  rendered,  and  witnesses 
testifying  to  the  value  of  such  services  must  show  that 
they  know  the  rates  charged  in  the  vicinity  where  the 
services  wT^re  rendered.81 

§  1021.  Of  the  custody  of  children.— The  control  of 
the  children  of  the  parties  is  in  the  court  pending,  the 
suit  as  well  as  when  final  decree  is  granted.82  Put  the 
right  of  custody  does  not  survive  the  death  of  the  party 
entitled  thereto.83 

§  1022.   Of  allowance  of  permanent  alimony  without 
divorce. — An  action  may  be  brought  for  alimony  alone 
when  the  wife  is  separated  from  the  husband  on  account 
of  misconduct  on  his  part  wrhich  justified  the  separa- 
te Picket  v.  Garrison,  76-347.  si  Stevens  v.  Ellsworth,  63  N.  W., 

77  Scott  v.  Rogers,  77-483.  683. 

78  Daniels  v.  Lindley,  44-567.  §2  Code,  Sees.  3177,  3180;    Green 

79  Wilson  v.  Wilson,  40-230;  see      v.  Green,  52-403;   Zuver  v.  Zuver, 
Porter  v.  Briggs,  38-166;   Johnson      36-190;  Cole  v.  Cole,  23-433;   Hunt 
v.  Williams,  3  G.  Gr.,  97.  v.  Hunt,  4  G.  Gr.,  216;     Farrer  v. 

»o  Preston    v.    Johnson,    65-285;       Farrer,  75-125;  Aitchison  v.  Aitchi- 
Porter  v.  Briggs,  38-166;    Sherwin      son,  68  N.  W.,  573. 
v.  Maben,  78-467;  Doolittle  v.  Doo-          ss  Barney  v.  Barney,  14-189. 
little,  78-691;    Clyde  v.  Peavy,  74- 
47. 


§§  1023-24.  J  DIVORCE,   ANNULLING    MARRIAGES,    ETC. 

tion.84  But  an  action  can  not  be  maintained  for  alimony 
as  an  independent  proceeding  after  the  divorce  of  the 
parties.85  But  a  wife  residing  in  this  State,  against 
whom  a  valid  decree  of  divorce  has  been  rendered  in  an- 
other State,  according  to  its  laws,  can  not  afterward 
maintain  an  action  in  this  State  for  alimony  out  of  y^op- 
erty  not  belonging  to  her  former  husband  at  the  time  of 
the  granting  of  such  divorce.86 
§  1023.  Of  the  power  to  grant  permanent  alimony. 

—The  power  to  allow  alimony  is  an  incident  of  the  power 
to  grant  a  divorce,  and  it  may  be  granted  though  not 
claimed  in  the  original  notice.87  And  this  is  true  though 
the  service  is  had  by  publication  only,  and  in  such  a  case 
the  court  can  declare  and  enforce  a  lien  for  alimony 
against  real  estate  of  the  defendant,  situated  in  another 
county.88  And  alimony  may  be  granted  though  no  refer- 
ence thereto  is  made  in  the  pleadings.89  Nor  will  an 
agreement  for  settlement  in  view  of  separation  bar  a 
claim  for  alimony  in  a  subsequent  action  for  a  divorce.90 
A  contract  may  be  made  between  husband  and  wife  mak- 
ing provision  for  her  in  lieu  of  alimony.91  But  alimony 
can  not  be  allowed  unless  the  relation  of  husband  and 
wife  exists.92 
§  1024.  When  an  allowance  of  alimony  is  proper. 

—Where  the  wife,  without  sufficient  cause,  had  left  the 
husband,  and  the  latter  afterward  committed  adultery, 
for  which  a  divorce  was  granted  the  wife,  it  was  held 
that  she  was  entitled  to  alimony.93  Ordinarily  where  the 
husband  obtains  a  divorce  from  his  wife  on  the  ground 
of  adultery,  she  will  not  be  awarded  alimony.94  And 
generally  alimony  is  not  given  to  the  party  in  fault.95  In 

s-t  Graves  v.  Graves,  36-310;  Whit-  so  Zuver  v.  fcuver,  36-190. 

comb  v.   Whitcomb,   46-437;    Finn  »o  Wilson     v.     Wilson,     40-230; 

v.  Finn,  62-482;  Farber  v.  Farber,  Campbell  v.  Campbell,  73-482. 

64-362;  Plainer  v.  Platner,  66-378;  »i  Martin  v.  Martin,  65-255,  and 

Simpson  v.  Simpson,  91-235.  cases  cited. 

ss  Wilde  v.  Wilde,  36-319.  »2  Blythe  v.  Blythe,  25-266. 

ss  Van  Orsdal  v.  Van  Orsdal,  67-  ^  Dupont  v.  Dupont,  10-112. 

35.  94  Fivecoat  v.  Fivecoat,  32-198. 

ST  McEwen  v.  McEwen,  26-375.  »s  Barnes  v.  Barnes,  59-456. 

8*  Harshberger    v.    Harshberger, 
26-503. 


234:  DIVORCE,   ANNULLING    MAERIAGES,    ETC.   |_  §§1025-27. 

the  cases  cited  below  the  amount  and  kind  of  alimony 
proper  to  be  allowed  in  particular  cases  is  considered.00 

§  1025.  Of  allowing  specific  property. — A  specific 
part  of  the  husband's  estate  may  be  allowed  the  wife  as 
alimony.97  But  ordinarily  specific  property  should  not 
be  thus  allowed  as  alimony,  especially  so  if  the  husband 
is  able  to  pay  in  money  the  amount  to  be  allowed.98  And 
it  seems  to  be  held  that  in  no  case  should  more  than  one 
third  of  the  husband's  property  be  allowed  as  alimony, 
and  sometimes  a  less  amount." 

§  1026.  Of  the  lien  of  the  judgment. — Alimony  may 
be  made  a  lien  on  the  homestead,1  but  a  general  judgment 
for  alimony,  in  some  cases  at  least,  can  not  be  enforced 
against  a  homestead.2  But  where  the  decree  makes  the 
alimony  a  lien  on  the  homestead  the  fact  that  such  prop- 
erty is  a  homestead,  must  be  set  up  in  the  action  as  it  can 
not  be  taken  advantage  of  after  decree.3  A  judgment  for 
alimony  decreed  to  be  a  lien  as  against  property  of  the 
defendant  in  another  county  will  take  priority  over  a  sub- 
sequent attachment  of  such  property,  although  the  at- 
tachment is  prior  to  the  filing  of  a  transcript  of  the  lien 
in  the  county  where  the  land  is  situated.4  And  sometimes 
alimony  will  be  decreed  to  be  a  lien  prior  to  an  existing 
mortgage.5 

§  1027.  Of  setting  aside  the  decree,  and  of  its  modi- 
fication, etc. — A  decree  of  divorce  may  be  set  aside  for 
fraud  in  obtaining  it,  though  the  rights  of  subsequent  in- 
nocent parties  have  intervened,  and  the  plaintiff  has  re- 
married.6 And  in  such  case  the  fraudulent  decree  is  no 
defense  to  a  prosecution  for  adultery  for  cohabiting  with 

»6Abey  v.  Abey,  32-575;    Farley         »»  Zuver  v.  Zuver,  36-190. 
v.  Farley,  30-353;  Sesterhen  v.  Ses-          i  Wilson  v.  Wilson,  40-230. 
terhen,  60-301;  Day  v.  Day,  84-221;          2  Byers  v.  Byers,  21-268. 
Doolittle  v.  Doolittle,  78-691;  Doug-         3  Hemenway  v.  Wood,  53-21. 
lass  v.  Douglass,  81-258;  Parker  v.          *  Harshberger     v.    Harshberger, 

Albee,  86-46;  Abel  v.  Abel,  89-300;  26-503. 
Ensler  v.  Ensler,  72-159.  5  Sesterhen  v.  Sesterhen,  60-301. 

»"  Jolly  v.  Jolly,   1-9;    Twing  v.          « Whitcomb    v.    Whitcomb,    46- 

O'Meara,    59-326;     see    Russell    v.  437;  Rush  v.  Rush,  46-648,  and  48- 

Russell,  4  G.  Gr.,  26.  701. 

as  Inskeep  v.  Inskeep,  5-204. 


§  1027.  ]  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  235 

a  woman  to  whom  the  party  procuring  the  divorce  was 
married  after  the  divorce  was  granted,  and  before  it  was 
set  aside.7  But  it  has  been  held  that  a  divorce  claimed 
to  have  been  procured  by  fraud  would  not  be  set  aside 
at  the  instance  of  the  husband,  who  had  himself  been 
divorced  in  another  State,  and  who  waited  a  year  after 
knowing  of  such  fraudulent  divorce,  and  until  his  wife 
had  re-married,  before  moving  in  the  matter.8  The  stat- 
ute authorizes  subsequent  changes  to  be  made  by  the 
court,  with  reference  to  alimony,  the  custody  of  children, 
and  the  maintenance  of  the  parties.9  But  such  changes 
can  not  be  made  after  the  death  of  a  party  against  whom 
the  change  is  sought.10  But  in  other  cases  the  court  pos- 
sesses the  power  to  modify  the  decree,  even  though  the 
parties  have  removed  from  the  State.11  But  this  power  to 
change  or  modify  the  decree  exists  only  when  there  is  a 
change  in  the  circumstances  or  conditions  of  the  parties.12 
Nor,  it  seems,  will  a  decree  be  modified  on  account  of 
change  in  the  conditions  of  the  party,  when  such  change 
has  been  brought  about  by  the  improper  conduct  of  the 
party  seeking  a  change  in  the  decree.13  Nor  will  a  decree 
be  so  changed  as  to  allow  alimony  when  none  was 
claimed,  or  intended  to  be  claimed,  when  the  divorce  was 
granted.14  Nor  can  a  judge  in  vacation  and  without  no- 
tice to  the  parties  change  the  terms  of  a  decree.15  While 
it  is  a  question  whether  any  court  other  than  the  one 
granting  the  decree  can  change  or  modify  it,  yet  another 
court  may  make  an  order  in  a  habeas  corpus  proceeding, 
relating  to  the  custody  of  a  child,  which  will  be  valid.10 
Until  modified,  the  decree  is  valid  and  binding,  and  can 
not  be  attacked  or  changed  in  a  collateral  proceeding.17 
One  to  whom  a  divorce  is  granted  has  no  further  right  or 

T  State  v.  Whitcomb,  52-85.  12  Blythe  v.Blythe,  25-266;  Wilde 

s  Webster  v.  Webster,  54-153.  v.  Wilde,  36-319. 

9  Code,   Sec.    3180;    Sherwood   v.  is  Fisher  v.  Fisher,  32-20. 
Sherwood,  56-608;  Boggs  v.  Boggs,  "Rouse  v.  Rouse,  47-422. 
49-190;    White    v.    White,    75-218;  15  Hamman  v.  Van  Wagenen,  62 
Reid  v.  Reid,  74-681.  N.  W.,  795. 

10  O'Hagan  v.  O'Hagan,  4-509.  "  Shaw  v.  M'cHenry,  52-182. 

11  Andrews  v.   Andrews,  15-423;          IT  Jennings  v.  Jennings,  56-288. 
Jungk  v.  Jungk,  5-541. 


236  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  [§§  1028-30. 

interest  in  the  property  of  the  other  party  than  is  given 
by  the  decree,  and  can  not  claim  any  share  of  it  as  dower 
in  case  of  survival.18  A  proceeding  for  a  divorce  abates 
upon  the  death  of  the  defendant19 

In  making  its  orders  for  an  attachment  or  for  alimony, 
or  for  the  custody  of  the  children,  the  court  must  take 
into  consideration  the  age  and  sex  of  the  plaintiff,  and 
the  physical  and  pecuniary  condition  of  the  parties,  and 
all  other  matters  which  are  pertinent,  which  facts  may  be 
shown  by  affidavits  in  addition  to  the  pleadings,  or  by 
other  evidence  as  the  court  or  judge  may  direct.20 

§  1028.  Of  the  causes  for  annulling  marriages.— 
Marriages  may  be  annulled  for  the  following  reasons:  1. 
When  the  marriage  between  the  parties  is  prohibited  by 
law.  2.  When  either  party  was  impotent  at  the  time  of 
the  marriage.  3.  When  either  party  had  a  husband  or 
wife  living  at  the  time  of  the  marriage;  provided  they 
have  not,  with  a  knowledge  of  such  fact,  lived  and  co- 
habited together  after  the  death  of  the  former  spouse  of 
such  party.  4.  WThere  either  party  was  insane  or  idiotic 
at  the  time  of  the  marriage.21 

§  1029.  Of  the  petition,  etc.— The  petition  must  be 
filed  in  such  cases  as  in  an  action  for  divorce,  except  that 
some  one  of  the  causes  for  annulling  the  marriage  must 
be  stated.22  From  the  form  given  of  a  petition  for  a  di- 
vorce one  can  readily  be  drawn  to  annul  a  marriage. 
When  the  validity  of  a  marriage  is  doubted,  either  party 
may  file  a  petition  setting  up  the  fact  and  it  will  be  an- 
nulled or  affirmed  according  to  the  proof.23 

§  1030.  Of  the  legitimacy  of  children,  etc, — When 
a  marriage  is  annulled  on  account  of  consanguinity  or 
affinity  of  the  parties,  the  issue  will  be  illegitimate;  if 
because  of  the  impotency  of  the  husband,  any  issue  of  the 

isBoyles  v.  Latham,  61-174,  and  Henke,  58-457;  Carpenter  v.  Smith, 

see  McCraney  v.  McCraney,  5-232;  24-200;  Drummond  v.  Irish,  52-41; 

Winch  v.  Bolton,  63  N.  W.,  330.  Wier  v.  Still,  31-107;  Shaw  v.Shaw, 

i»O'Hagan    v.    O'Hagan,    4-509;  92-722. 

Barney  v.  Barney,  14-189.  22  Code,  Sec.  3183. 

20  Code,  Sec.  3179.  23  Code,  Sec.  3184. 

21  Code,     Sec.     3182;      State*    v. 


§  1030.]  DIVORCE,    ANNULLING    MARRIAGES,    ETC.  237 

wife  will  be  illegitimate,  but  when  it  is  annulled  on  ac- 
count of  non-age,  insanity  or  idioi-y,  the  issue  is  the  legit- 
imate issue  of  the  party  capable  of  contracting  mar- 
riage.24 If  a  marriage  is  annulled  on  account  of  a  prior 
marriage,  and  the  parties  contracted  the  second  marriage 
in  good  faith,  believing  the  prior  husband  or  wife  to  be 
dead,  that  fact  must  be  stated  in  the  decree,  and  the  issue 
of  the  second  marriage  begotten  before  the  decree  of  the 
court  is  the  legitimate  issue  of  the  parent  capable  of  con- 
tracting.25 In  case  either  party  entered  into  the  contract 
in  good  faith,  supposing  the  other  to  be  capable  of  con- 
tracting, and  the  marriage  is  declared  a  nullity,  such  fact 
must  be  entered  in  the  decree,  and  the  court  may  award 
such  innocent  party  compensation  as  in  cases  of  divorce.26 
Where  a  person  after  his  second  marriage  lived  in  the 
town  where  the  first  wife  lived  and  she  did  not  question 
the  validity  of  the  second  marriage  nor  the  legitimacy 
of  the  issue  thereof,  the  presumption  is  the  parties  to  the 
first  marriage  were  divorced  before  the  second  marriage, 
and  that  the  issue  of  each  marriage  will  inherit  from 
their  father.27  And  see  further  as  to  presumptions.28 

2*  Code,  Sec.  3185.  27  Leach  v.  Hall,  64  N.  W.,  790. 

25  Code,  Sec.  3186.  28  Blanchard  v.  Lambert,  43-228; 

21  Code,    Sec.    3187;    Daniels    v.      In  re  Estate  of  Edwards,  58-431. 
Morris,  54-369;   Barber  v.  Barber, 
74-301. 


CHAPTER  LXIV. 

OF  HABEAS  CORPUS. 

Sec.    1031.  When  the  writ  lies. 

1032.  When  it  does  not  lie. 

1033.  Of  the  petition. 

1034.  Of  the  application  for  the  writ 

1035.  Of  the  issuance  of  the  writ. 

1036.  Of  notice  to  the  county  attorney. 

1037.  Of  service  of  the  writ. 

1038.  Of  disobedience  of  the  writ. 

1039.  Duties  of  the  officer. 

1040.  Of  the  order  and  when  it  will  issue. 

1041.  How  the  order  is  served. 

104f.  Presumptions — Appearance  of  the  parties. 

1043.  Of  contempt  and  attachment. 

1044.  Of  commitment  for  failure  to  comply  with  the  writ 

1045.  Of  the  service  of  the  attachment 

1046.  Of  the  answer  to  the  writ. 

1047.  Of  pleas  to  the  answer. 

1048.  Of  the  trial  and  judgment. 

1049.  Of  proceedings  by  habeas  corpus  for  the  custody  of  children. 

1050.  Of  disobedience  of  an  order  of  discharge — Filing  of  papers. 

Section  1031.  When  the  writ  lies. — It  lies  to  ascer- 
tain whether  any  person  is  rightfully  in  confinement  or 
not  and  the  cause  of  his  confinement.1  It  lies  in  every 
case  of  illegal  restraint.2  It  lies  in  every  case  when  the 
application  therefor  is  made  as  required  by  law,  except 
in  case  of  rebellion  or  invasion,  when  the  public  safety 
may  require  it.3 

It  has  always  been  regarded  as  the  great  safeguard 
against  oppression  and  wrong,  and  the  bulwark  of  per- 
sonal liberty.4  It  lies  to  inquire  into  the  legality  of  a 

1  Story  on  Const.,  Vol.    2,    Sec.      Const,  of  U.  S.,  Art.  1,  Sec.  9,  clause 
1339.  2. 

2  Shaw  v.  McHenry,  52-182,  184.          *  Story    on    Const,   Vol.    2,   Sec. 
s  Const,  of  Iowa,  Art.  1,  Sec.  13;      1339. 

238 


§1032.]  HABEAS     CORPUS.  239 

restraint  in  case  one  is  imprisoned  by  a  usurper  in  office.5 
It  lies  for  the  purpose  of  inquiring  into  the  validity  of  an 
enlistment  into  the  army  of  the  United  States.6 

It  has  been  held  to  lie  in  a  case  where  one  charged  on 
preliminary  information  with  a  crime,  waived  a  hearing 
and  gave  bond  with  sureties  for  his  appearance  at  the 
next  term  of  court,  and  where  he  was  arrested  at  the  in- 
stance of  his  bondsmen,  who  surrendered  him  to  the  sher- 
iff; and  in  that  case  the  plaintiff  claimed  that  the  law 
under  which  he  was  charged  with  the  crime  was  uncon- 
stitutional and  he  applied  for  a  writ  of  habeas  corpus; 
it  was  held  that  his  sureties  had  no  right  to  arrest  him 
for  the  purpose  of  his  own  exoneration,  but  that  the  court 
would  not  be  justified  in  refusing  to  entertain  the  case, 
when  the  determining  of  the  constitutionality  of  the  law 
was  of  great  importance  to  the  public  interest.7  As  a 
justice  of  the  peace  has  no  power  to  compel  a  party  to 
appear  by  subpoena  and  make  affidavit  which  is  sought 
only  as  information  on  which  to  base  a  civil  action,  the 
writ  will  lie  to  release  one  who  has  been  committed  for 
disobedience  of  such  subpo3na.8 

It  will  also  lie  in  favor  of  persons  confined  as  insane, 
and  the  question  of  insanity  will  be  decided  at  the  hear- 
ing, and  if  the  judge  decides  that  the  person  is  insane, 
such  decision  will  be  no  bar  to  the  issuance  of  a  writ  the 
second  time,  whenever  it  is  alleged  that  such  person  has 
been  restored  to  reason.9  It  lies  where  minor  children 
are  alleged  to  be  concealed  in  one  of  two  counties,  and 
the  court  in  either -county  will  have  jurisdiction  to  issue 
the  writ.10 

§  1032.  When  it  does  not  lie. — It  does  not  lie  unless 
application  is  made  to  the  judge  most  convenient  in  point 
of  distance  to  the  applicant,  unless  a  sufficient  reason  be 
stated  in  the  petition  for  not  making  the  application  to 
the  more  convenient  court  or  judge  thereof.11 

o  Ex  parte  Strahl,  16-369.  »  Code,  Sec.  2306;  In  re  Breese, 

e  Ex  parte  Anderson,  16-595.  82-573. 

7  Brown  v.  Duffus,  66-193.  10  Rivers  v.  Mitchell,   57-193. 

s  Dudley  v.  McCord,  65-671.  "Code,  Sec.  4420;  Thompson  v. 


240  HABEAS   COEPUS.  [§  1033. 

It  does  not  lie  where,  from  the  showing  of  the  peti- 
tioner, the  plaintiff  would  not  be  entitled  to  any  relief.12 
It  does  not  lie  for  the  purpose  of  revising  a  judgment  and 
proceedings  of  a  competent  court,  which  had  jurisdiction 
of  the  case,  and  this  is  true  even  though  the  conviction 
be  irregular  or  erroneous.13  It  does  not  lie  by  a  State 
court  to  release  one  who  is  held  in  custody  under  an  order 
of  a  United  States  court,  issued  in  the  regular  course  of 
its  procedure.14  Nor  will  it  lie  in  case  where  a  court  hav- 
ing jurisdiction  of  a  cause  is  proceeding  to  arrest  a  party 
for  contempt;  in  such  a  case  no  other  court  can  inter- 
meddle with,  or  stay  the  proceedings.15 

So  it  will  not  lie  to  inquire  into  the  right  of  one  who  is 
holding  an  office  by  color  of  right,  though  he  be  not  an 
officer  de  jure.16  It  will  not  lie  where  a  person  is  held 
to  answer  to  the  grand  jury,  and  he  claims  that  the  evi- 
dence on  which  he  was  committed  was  insufficient  in  law, 
and  on  such  grounds  sues  out  a  writ  of  habeas  corpus,  he 
and  trie  sheriff  agreeing  in  the  petition  and  answer  as  to 
what  the  evidence  was.17  Nor  will  it  lie  to  determine 
wrhether  the  offense  for  which  one  is  imprisoned  is  a  crime 
under  the  statute,  nor  to  correct  an  erroneous  taxation 
of  costs.18  Nor  will  it  lie  in  case  fraud  is  found  by  a  com- 
petent tribunal,  to  question  the  correctness  of  that  find- 
ing on  bringing  up  the  body  of  the  fraudulent  debtor.19 
Nor  to  attack  the  validity  of  a  judgment  unless  it  is 
void.20  Nor  to  release  a  prisoner  because  the  length  of 
imprisonment  for  the  non-payment  of  a  fine  is  not  fixed.21 

§  1033.  Of  the  petition. — Application  for  the  writ 
of  habeas  corpus  must  be  made  by  petition,  must  be 
sworn  to  and  must  state:  1st.  That  the  person  in  whose 
behalf  it  is  sought  is  restrained  of  his  liberty,  and  the 

Oglesby,  42-598;  Shaw  v.  McHenry,  n  Ex  parte  Holman,  28-88. 

52-182,  184.  is  Ex  parte  Holman,   28-88;    see 

12  Code,   Sec.  4421.  Robb  v.  McDonald,  29-330. 

is  piatt  v.  Harrison,  6-79;   Zelle  i«  Ex  parte  Strahl,  16-369. 

v.     McHenry,     51-572;     Ex     parte  instate  v.  Rosecrans,  65-382. 

Grace,  12-208;   Robb  v.  McDonald,  is  State  v.  Orton,  67-554. 

29-330;    Ex   parte   Holman,   28-88;  i»  Ex  parte  Grace,  12-208. 

State  v.  Orton,  67-554;  Jackson  v.  20  Turney  v.  Barr,  75-758. 

Boyd,  53-536.  21  Eisner  v.  Shrigley,  80-30. 


§  1033.]  HABEAS     CORPUS.  241 

person  by  whom,  and  the  place  where  he  is  restrained, 
mentioning  the  names  of  the  parties  if  known,  and  if  un- 
known, describing  them  with  such  particularity  as  is 
practicable.  2d.  The  cause  or  pretense  of  such  restraint 
according  to  the  best  information  of  the  applicant,  and 
if  it  be  by  virtue  of  any  legal  process,  a  copy  thereof  must 
be  annexed,  or  a  satisfactory  reason  given  for  its  absence. 
3d.  It  must  state  that  the  restraint  is  illegal  and  wherein. 
4th.  That  the  illegality  of  the  imprisonment  has  not  al- 
ready been  adjudged  upon  a  prior  proceeding  of  the  same 
character,  to  the  best  knowledge  and  belief  of  the  appli- 
cant. 5th.  It  must  also  state  whether  application  for  the 
writ  has  been  made  to  and  refused  by  any  court  or  judge, 
and  if  such  application  has  been  made,  a  copy  of  the  peti- 
tion in  that  case  with  the  reasons  for  the  refusal  thereto 
appended  must  be  produced,  or  satisfactory  reasons  given 
for  the  failure  to  do  so.22 

The  petition  must  be  sworn  to  by  the  person  confined, 
or  by  some  one  in  his  behalf,  and  presented  to  some  court 
or  officer  authorized  to  allow  the  writ.23 

It  may  be  in  the  following  form : 

FORM  OF  PETITION  FOR  HABEAS  CORPUS. 
Title,     ) 
Venue.     j 

To  the  supreme  (or  district)  court,  (or  any  judge  of  either  as  the  case 
may  be,  naming  judge  to  whom  application  is  made),  of  the  State  of 
Iowa: 

The  petition  of  respectfully  shows  that  he  is  restrained  of 

his  liberty  by ,  sheriff  of county,  Iowa,  at  the  county  jail 

of  said  county  (or  if  at  any  other  place  state  it),  in  (name  of  place 
where  person  is  restrained) ;  that  the  cause  or  pretense  of  such  res- 
traint according  to  the  best  information  of  your  petitioner  is  by  virtue 
of  a  warrant  of  commitment,  a  copy  of  which  is  hereto  annexed  and 
marked  exhibit  "A."  (If  a  copy  can  not  be  obtained  state  the  reason 
and  what  efforts  have  been  used  to  obtain  it.) 

Your  petitioner  further  states  that  said  restraint  is  illegal,  and 
that  said  illegality  consists  in  this,  to  wit  (here  state  the  alleged  ille- 
gality) ;  that  the  legality  of  said  imprisonment  has  not  been  adjudged 

22  Code,  Sec.  4417;  Platt  v.  Har-  Strahl,  16-369;  Ex  parte  Anderson, 

rison,  6-79;   Zelle  v.  McHenry,  51-  16-595:    Thompson  v.  Oglesby,  42- 

572;  Ex  parte  Holman,  28-88;  Robb  598;  Shaw  v.  McHenry,  52-182,  184. 

v.     McDonald,    29-330;     Ex    parte  23  Code,  Sec.  4418. 
Vol.  11—16 


242  HABEAS     COKPUS.  [§  1034. 

upon  a  prior  proceeding  of  this  character,  to  the  best  knowledge  and 
belief  of  your  petitioner;  that  application  for  the  writ  of  habeas  corpus 
has  not  been  by  your  petitioner,  or  any  one  in  his  behalf,  made  to  and 
refused  by  any  court  or  judge  (if  such  application  has  been  made  that 
fact  should  be  stated  and  a  copy  of  the  petition  in  such  case  with  the 
reasons  for  the  refusal  thereof  appended  thereto  must  be  produced  or 
satisfactory  reasons  given  for  the  failure  to  do  so).  Wherefore,  your 
petitioner  prays  a  writ  of  habeas  corpus  to  the  end  that  he  may  be  dis- 
charged from  said  illegal  imprisonment  (or  to  the  end  that  he  may  be 

admitted  to  bail,  as  the  case  may  be). 

,  petitioner. 

(or ,  attorney  for  petitioner,  as  the  case  may  be). 

(Add  verification.) 

(Attach  and  mark  the  exhibits  referred  to  in  the  petition.) 

If  the  application  for  a  writ  is  made  by  some  one  in 
behalf  of  a  person  confined  the  form  must  be  changed  ac- 
cordingly and  be  sworn  to  by  the  person  making  the  ap- 
plication. 

§  1034,  Of  the  application  for  the  writ. — A  writ  of 
habeas  corpus  may  be  allowed  by  the  supreme,  district 
or  superior  court,  or  any  judge  thereof,  and  may  be  served 
in  any  part  of  the  State,24  and  when  the  writ  is  properly 
applied  for  it  must  be  allowed  by  the  court  or  judge  to 
whom  application  is  made,  providing,  of  course,  such 
application  be  made  to  the  proper  court  or  judge.25  The 
application  for  the  writ  must  be  made  to  the  court  or 
judge  most  convenient  in  point  of  distance  to  the  appli- 
cant, and  the  more  remote  court  or  judge,  if  applied  to 
for  the  writ,  may  refuse  the  same  unless  a  sufficient  rea- 
son be  stated  in  the  petition  for  not  making  the  applica- 
tion to  the  more  convenient  court  or  judge  thereof.26  The 
court  or  judge  applied  to  may  refuse  to  allow  the  writ, 
whenever  it  appears  from  the  showing  of  the  petitioner 
that  the  plaintiff  would  not  be  entitled  to  any  relief.27 
When  any  court  or  judge  refuses  the  writ  his  reasons  for 
so  doing  must  be  appended  to  the  petition,  and  returned 
to  the  person  applying  for  the  writ.28 

2*  Code,  Sec.  4419.  27  Code,  Sec.  4421. 

25  Code,  Sees.  4420,  4423.  as  Code,  Sec.  4422. 

26  Code,  Sec.  4420;   Thompson  v. 
Oglesby,  42-598;  Shaw  v.  McHenry, 
52-182,  184. 


§§  1035,  1036.]  HABEAS    CORPUS.  243 

§  1035.  Of  the  issuance  of  the  writ. — It  is  the  duty 
of  the  court  or  judge  to  whom  the  application  is  made, 
if  it  shows  sufficient  grounds  for  relief  and  is  in  the  form 
provided  by  law,  to  allow  the  writ,  which  may  be  in  the 
following  form: 

FORM  OF  WRIT  OF  HABEAS  CORPUS. 

The  State  of  Iowa. 
To  the  sheriff  of county,  Iowa  (or  to as  the  case  may  be) : 

You  are  hereby  commanded  to  have  the  body  of by  you  un- 
lawfully detained  as  is  alleged  before  the  court  (or  before  me,  or  before 

— ,  judge  of  the judicial  district  of  Iowa,  or judge  of  the 

supreme  court  of  Iowa,  as  the  case  may  be,)  at  —  — ,  on  the  —  —  day 
of  —  — ,  18 — ,  (or  immediately  after  being  served  with  this  writ)  to  be 
dealt  with  according  to  law,  and  have  you  then  and  there  this  writ  witb 
a  return  thereon  of  your  doings  in  the  premises.29 

In  witness  whereof  I  have  hereto  signed  my  name  and  affixed  hereto 
the  seal  of  said  court. 

[Seal.]  ,  clerk  of  the court  of  Iowa. 

When  a  writ  is  allowed  by  the  court  it  is  to  be  issued 
by  the  clerk,  but  when  allowed  by  a  judge  he  must  issue 
the  writ  himself,  subscribing  his  name  thereto  without 
any  seal.30 

Any  judge,  whether  acting  individually  or  as  a  mem- 
ber of  the  court,  who  wrongfully  and  willfully  refuses 
to  allow  the  writ  when  properly  applied  for,  forfeits  to 
the  party  aggrieved  the  sum  of  one  thousand  dollars.31 

So  whenever  it  appears  to  any  court  or  judge  author- 
ized to  grant  this  writ,  from  evidence  from  a  judicial 
proceeding  before  them,  that  any  person  within  the  juris- 
diction of  such  court,  or  officer,  is  illegally  imprisoned  or 
restrained  of  his  liberty,  such  court  or  judge  shall  issue 
or  cause  to  be  issued  the  writ  as  aforesaid,  though  no- 
application  be  made  therefor.32 

§  1036.  Of  notice  to  the  county  attorney. — The 
court  or  officer  allowing  the  writ  must  cause  the  county 
attorney  of  the  proper  county  to  be  informed  of  the  is- 
suance of  the  same  and  of  the  time  and  place  when  and 
where  it  is  made  returnable.33 

20  Code,  Sec.  44?3.  32  Code,  Sec.  4426. 

so  Code,  Sec.  4424.  33  Code,     Sec.     4427:     Miller     T. 

31  Code,  Sec.  4425  Buena  Vista  County,  68-711. 


244  HABEAS     CORPUS.  [§  1037. 

When  the  notice  above  required  is  not  given,  the  coun- 
ty attorney,  the  court,  or  judge,  can  not,  by  the  appoint- 
ment of  a  member  of  the  bar  to  appear  for  the  defendant, 
confer  upon  said  attorney  the  right  to  demand  of  the 
county  pay  for  his  services;  whether  it  could  be  done  if 
the  county  attorney  had  been  notified  and  failed  to  ap- 
pear, quaere.34 

The  notice  to  be  given  the  county  attorney  may  be  in 
the  following  form: 

FORM  OF  NOTICE  TO  COUNTY  ATTORNEY. 

To ,  county  attorney  of county,  Iowa:" 

You  are  hereby  notified  that  a  writ  of  habeas  corpus  has  been  issued 
by  me  (or  by  the  court)  to  inquire  into  the  cause  of  the  imprisonment 

of ,  now  confined  in  the  jail  of county;  that  said  writ  is 

made  returnable  before  me  (or  said  court),  at  the  court  house  (or  if 

at  any  other  place  designate  it),  in ,  on  the day  of  -     — , 

18—,  at  —      -  o'clock  in  the noon  of  said  day,  when  and  where 

you  can  attend  if  you  think  proper. 

Dated  this  day  of  ,  18—. 

,  judge,  etc. 

(The  court  or  judge  issuing  the  writ  may  cause  the  notice  to  the 
county  attorney  to  be  given  by  the  plaintiff's  attorney,  or  by  the  clerk 
of  the  court  when  it  is  issued  by  the  court.) 

§1037.  Of  service  of  the  writ. — The  writ  may  be 
served  by  the  sheriff  or  by  any  other  person  appointed 
for  that  purpose,  in  writing,  by  the  court  or  judge  by 
whom  it  is  issued  or  allowed;  if  served  by  any  other  than 
the  sheriff  he  possesses  the  same  power  and  is  liable  to 
the  same  penalty  for  non-performance  of  his  duty  as 
though  he  was  the  sheriff.35  The  proper  mode  of  service 
is  by  leaving  the  original  writ  with  the  defendant,  and 
preserving  a  copy  thereof,  on  which  to  make  the  return 
of  service,  but  a  failure  in  this  respect  will  not  be  held 
material.36  If  the  defendant  can  not  be  found  or  if  he 
has  not  the  plaintiff  in  custody,  the  service  may  be  made 
upon  any  person  having  the  plaintiff  in  his  custody  in 
the  same  manner  and  to  the  same  effect  as  though  he  had 

"-*  Miller  v.  Buena  Vista  County,          ^  Code,  Sec.  4428. 
€8-711.  so  Code,  Sec.  4429. 


§§  1038, 1039.]  HABEAS    COBPUS.  24:5- 

been  made  defendant  therein.37  If  the  plaintiff  can  be- 
found  and  no  one  appear  to  have  the  charge  or  custody 
of  him,  the  person  having  the  writ  may  take  him  into 
custody  and  make  return  accordingly.38 

And  if  necessary  to  obtain  possession  of  the  plaintiff's 
person,  in  such  case  the  person  having  the  writ  may  ar- 
rest the  defendant  and  bring  him  before  the  officer  before 
whom  the  writ  is  made  returnable.39 

If  the  defendant  conceals  himself  or  refuses  admit- 
tance to  the  person  attempting  to  serve  the  writ,  or  if 
he  attempt  wrongfully  to  carry  the  plaintiff  out  of  the 
county,  or  the  State,  after  the  service  of  the  writ,  the 
sheriff  or  the  person  who  is  attempting  to  serve,  or  who 
has  served  the  writ,  is  authorized  to  arrest  the  defend- 
ant, and  bring  him  with  the  plaintiff  before  the  officer  or 
court  before  whom  the  writ  is  made  returnable.40 

And  in  order  to  make  such  arrest  the  sheriff  or  person 
having  the  writ  possesses  the  same  power  as  is  given  to 
the  sheriff  for  the  arrest  of  a  person  charged  with  a  fel- 
ony.41 

§  1038.  Of  disobedience  of  the  writ. — The  writ  of 
habeas  corpus  must  not  be  disobeyed  for  any  defects  of 
form  or  misdescription  of  the  plaintiff  or  defendant,  pro- 
vided enough  is  stated  to  show  the  meaning  and  intent 
of  the  writ42 

If  the  defendant  attempt  to  elude  the  service  of  the 
writ  or  to  avoid  the  effect  thereof  by  transferring  the 
plaintiff  to  another  or  by  concealing  him,  he  wrill,  on  con- 
viction, be  imprisoned  in  the  penitentiary,  or  county  jail, 
not  more  than  one  year,  and  fined  not  exceeding  one 
thousand  dollars,  and  any  person  knowingly  aiding  or 
abetting  in  any  such  act  will  be  subject  to  the  same  pun- 
ishment.43 

§  1039.  Duties  of  the  officer, —If  an  officer  refuse  to 
deliver  a  copy  of  any  legal  process  by  which  he  detains. 

37  Code,  Sec.  4430.  «  Code,  Sec.  4432. 

ss  Code,  Sec.  4433.  42  Code,  Sec.  4434. 

39  Code,  Sees.  4433,  4432.  «  Code,  Sec.  4435. 
«  Code,  Sec.  4431. 


HABEAS     CORPUS.  [§  1040. 

the  plaintiff  in  custody,  to  any  person  demanding  the 
same,  and  who  tenders  the  fees  therefor,  he  will  forfeit 
two  hundred  dollars  to  the  person  so  detained.44 

§  1040.  Of  the  order  and  when  it  will  issue. — The 
court  or  judge  to  whom  the  application  for  the  writ  is 
made,  if  satisfied  that  the  plaintiff  would  suffer  irrepar- 
able injury,  before  he  could  be  relieved  by  the  proceed- 
ings of  habeas  corpus,  may  issue  an  order  to  the  sheriff, 
or  any  other  person  selected  instead,  commanding  him 
to  bring  the  plaintiff  forthwith  before  such  court  or 
judge,45  and  when  the  evidence  is  sufficient  to  justify  the 
arrest  of  the  defendant  for  a  criminal  offense,  in  connec- 
tion with  the  illegal  detention  of  the  plaintiff,  the  order 
must  direct  the  arrest  of  the  defendant.46 

The  order  may  be  in  the  following  form: 

FORM  OF  ORDER  FOR  PLAINTIFF. 

The  State  of  Iowa. 

To  the  sheriff  of county  (or  to  some  person  selected  and  named), 

greeting: 

Whereas,  has  applied  to  me  for  a  warrant  for  the  body  of 

,  alleged  to  be  illegally  restrained  of  his  liberty  by  in 

the  county  jail  of county,  Iowa,  (or  at ,  as  the  case  may  be). 

And  whereas,   it  satisfactorily  appears  to  me  that  the  said  -        -  is 

illegally  restrained  of  his  liberty  by  the  said ,  and  also  that  the 

said  will  suffer  irreparable  injury  before  he  can  be  relieved  by 

issuing  the  ordinary  writ  of  habeas  corpus.     You  are,  therefore,  hereby 

commanded  that  you  fortEwith  take  the  said  and  bring  him 

before  me  to  be  dealt  with  according  to  law. 

Witness  my  hand  this day  of ,  18 — . 

,  judge,  etc. 

If  the  defendant  is  also  to  be  arrested  on  the  order, 
insert  in  the  above  form  before  the  date-line  and  signa- 
ture the  following: 

"And  whereas  it  further  satisfactorily  appears  to  me  that  the  said 
has  committed  the  crime  of  (here  name  the  offense)  in  connec- 


tion with  the  illegal  detention  of  the  said  ,  you  are,  therefore, 

hereby  commanded  forthwith  to  arrest  the  said  and  bring  him 

before  me  to  be  dealt  with  according  to  law,  and  have  you  then  and 
there  this  writ  with  a  return  hereon  of  your  doings  in  the  premises." 
(Add  date  and  signature  as  above.) 

"  Code,  Sec.  4436.  40  Code,  Sec.  4438. 

45  Code,  Sec.  4437. 


§§1041,1042,1043.]     HABEAS    CORPUS.  247 

If  the  application  is  to  the  court,  the  order  issues  by 
the  clerk  with  the  seal  of  the  court  affixed. 

§  1041.  How  the  order  is  served. — The  officer  or  per- 
son to  whom  the  order  is  directed  must  execute  the  same 
by  bringing  the  defendant,  and  the  plaintiff  if  required, 
before  the  court  or  judge  issuing  it,  and  thereupon  the 
defendant  must  make  return  to  the  writ  of  habeas  cor- 
pus in  the  same  manner  as  if  the  ordinary  course  had 
been  pursued.47 

§  1012.  Presumptions — Appearance  of  the  parties. 
—Any  person  served  with  a  writ  is  presumed  to  be  the 
person  to  whom  it  is  directed,  although  it  may  be  di- 
rected to  him  by  the  wrong  name  or  description,  or  to 
another  person.48 

And  where  service  is  made,  as  heretofore  stated,  the  de- 
fendant must  appear  at  the  proper  time  and  answer  the 
petition,  but  no  verification  to  the  answer  is  necessary.49 
He  must  also  produce  the  body  of  the  plaintiff  or  show 
good  cause  for  not  so  doing.50 

§  1043.  Of  contempt  and  attachment. — A  willful 
failure  to  comply  with  the  foregoing  requirements  ren- 
ders the  defendant  liable  to  be  attached  for  contempt 
and  imprisoned  until  a  compliance  is  obtained,  and  also 
subjects  himself  to  the  forfeiture  of  one  thousand  dollars 
to  the  party  thereby  aggrieved.51 

The  attachment  in  such  case  may  be  in  the  following 
form: 

FORM  OF  ATTACHMENT  FOR  CONTEMPT  IN  DISOBEYING  WRIT 
OF   HABEAS  CORPUS. 

The  State  of  Iowa. 

To   the   sheriff   of  -     —   county    (or  to   any   other  person   named), 
greeting: 

It  appearing  satisfactorily  to  me  (or  to  the court),  on  the 

oath  of ,  that to  whom  a  writ  of  habeas  corpus  was  de- 
livered commanding   him  to   have  the   body  of in   said   writ 

named  before  me   (or  before  court),   at  ,  on  the  - 

47  Code,  Sec.  4439.  so  Code,    Sec.    4443;     Rivers    v. 

48  Code,  Sec.  4441.  Mitchell,  57-193. 

4»  Code,  Sec.  4442.  5*  Code,  Sec.  4444. 


248  HABEAS    ccmrus.  [§  1044. 

day  of ,  18 — ,  to  be  dealt  with  according  to  law,  has  willfully 

neglected  to  obey  said  writ,  according  to  the  commands  thereof,  by  not 

producing  the  said before  me  (or  before court),  and  also 

by  not  making  return  of  said  writ. 

You  are,  therefore,  hereby  commanded  forthwith  to  arrest  the  said 

and  bring  him  immediately  before  me,  (or  before  court) 

at  (state  the  place),  in  said  county,  to  be  dealt  with  according  to  law. 
And  you  are  hereby  further  commanded  to  bring  up  and  have  before 

me  at  said  time  and  place,  the  body  of  the  said  ,  who  is  alleged 

to  be  illegally  restrained  of  his  liberty  by  the  said  ,  at  

(here  insert  place  where  plaintiff  is  confined)  to  be  dealt  with  according 
to  law,  and  have  you  then  and  there  this  writ  with  a  return  thereon 
of  your  doings  in  the  premises. 

Witness  my  hand  this day  of ,  18 — . 

,  judge,  etc. 

(If  attachment  is  issued  by  order  of  the  court,  it  must  be  signed  by 
the  clerk,  and  seal  of  the  court  affixed;  if  issued  by  the  judge  he  must 
sign  it  himself  without  any  seal.) 

§  1044.  Of  commitment  for  failure  to  comply  with 
the  writ. — A  willful  failure  to  comply  with  the  above 
requirements  renders  the  defendant,  who  has  been  pro- 
duced on  attachment  (before  the  court  or  judge),  liable 
to  be  imprisoned  until  a  compliance  is  obtained,  and  also 
subjects  him  to  the  forfeiture  of  one  thousand  dollars  to 
the  party  thereby  aggrieved.52 

And  if  on  his  appearance  he  still  refuses  to  comply 
with  the  orders  of  the  court,  he  may  be  committed  to  the 
jail  of  the  county.  The  warrant  of  commitment  may  be 
in  the  following  form: 

FORM  OF  WARRANT  OF  COMMITMENT. 

The  State  of  Iowa. 

To  the  sheriff  of county,  greeting: 

To (or  to  any  person  named,  as  the  case  may  be) :      Whereas 

has  been  brought  before  me  on  an  attachment  for  contempt 

issued  by  me  stating  (here  set  forth  the  contempt  as  stated  in  the 

attachment).    And  whereas  the  said still  refuses  to  produce  the 

body  of  said according  to  the  command  of  said  writ,  and  refuses 

to  make  a  plain  and  unequivocal  return  and  answer  to  said  writ  of 

habeas  corpus,  you  are  hereby  commanded  to  take  the  said and 

him  safely  keep  in  the  jail  of county,  Iowa,  until  he  shall  compiy 

with  the  said  writ  of  habeas  corpus,  or  until  otherwise  legally  dis- 
charged. 

,  judge,  etc. 

(If  the  order  for  the  warrant  is  made  by  the  court  it  should  b& 
signed  by  the  clerk  with  the  seal  of  court  attached.) 

«  Code,  Sec.  4444. 


§§1045,1046.]  HABEAS   CORPUS.  249 

§  1045.  Of  the  service  of  the  attachment.  — The  at- 
tachment may  be  served  by  the  sheriff,  or  any  other  per- 
son thereto  authorized  by  the  court  or  judge,  who  shall 
also  be  empowered  to  produce  the  body  of  the  plaintiff, 
forthwith,  and  has  for  this  purpose  the  same  powers  as 
are  conferred  upon  him  in  similar  cases  heretofore  ex- 
plained.53 

§  1046.  Of  the  answer  to  the  writ. — The  defendant 
upon  his  appearance  must  make  answer  in  which  he 
must  state  plainly  whether  he  then  has,  or  at  any  time 
has  had,  the  plaintiff  under  control  or  restraint,  and  if 
so,  the  causes  thereof.54  Where  the  petition  for  habeas 
corpus  alleged  that  minor  children  were  concealed  by 
the  defendant  in  one  of  two  counties,  and  the  court  in 
one  of  these  counties  issued  the  writ,  and  the  defendant 
in  his  answer  pleaded  that  the  children  were  in  a  foreign 
jurisdiction,  it  was  held  that  these  facts  did  not  deprive 
the  court  of  jurisdiction  or  excuse  the  defendant  from 
not  producing  the  children  in  court  in  obedience  to  th? 
writ.55 

If  he  has  transferred  the  plaintiff  to  another  person, 
he  must  state  that  fact,  and  to  whom  and  the  time  when, 
as  well  as  the  reasons  or  authority  for  such  transfer.56 
If  he  holds  him  by  virtue  of  legal  process  or  written  au- 
thority he  must  annex  a  copy  thereof  to  his  answer.57 

He  must  produce  the  bodies  of  the  persons  deprived  of 
their  liberties  before  the  court  or  judge,  or  state  in  his 
return  to  the  writ  that  he  does  not  have  the  power  to  do 
so  in  obedience  to  the  writ.58  When  the  custody  of  a 
child  is  in  controversy  the  controlling  fact  is  the  best 
interest  of  the  child.59 

The  answer  of  the  defendant  may  be  in  the  following 
form: 

ss  Code,  Sec.  4445.  ee  Code,  Sec.  4447. 

s*  Code,    Sec.    4446;      Rivers  V.          67  Code,  Sec.  4448. 
Mitchell,  57-195.  es  Rivers  v.  Mitchell,  57-195. 

55  Rivers  v.  Mitchell,  57-195.  69  Kuhn  v.  Breen.  70  N.  W..  732. 


250  HABEAS     COEPUS.  [§§  1047,   1048. 

FORM  OF  ANSWER  TO  WRIT  OF  HABEAS  CORPUS. 

Title, 
Venue. 

The  defendant  for  answer  and  return  to  the  writ  of  habeas  corpus 
hereto  annexed  states:  That  at  and  before  the  coming  of  said  writ 
to  him,  and  prior  to  its  service  on  him,  to  wit,  on  the day  of 

— ,  18 — ,  at ,  the  said  (here  insert  name  of  person  mentioned 

in  said  writ),  was  placed  in  his  custody  by  virtue  of  a  warrant  of  com- 
mitment (or  as  the  case  may  be),  issued  by  (here  state  name  and 
official  character  of  the  magistrate  who  issued  warrant),  a  copy  of 
which  is  hereto  annexed;  that  the  defendant  now  holds  -  -  in 
custody  by  virtue  of  said  warrant,  and  that  in  obedience  to  the  said 
writ  of  habeas  corpus  the  body  of  said is  now  produced  by  de- 
fendant before  said ,  judge  (or court,  as  the  case  may  be), 

to  be  dealt  with  according  to  law,  as  by  said  writ  commanded. 

,  sheriff,  defendant. 

(The  answer  need  not  be  verified.) so 

§  1047.  Of  pleas  to  the  answer. — The  plaintiff  may 
demur  or  reply  to  the  defendant's  answer,  but  no  verifi- 
cation will  be  required  to  the  reply.61 

Such  reply  may  deny  the  sufficiency  of  the  testimony 
to  justify  the  action  of  the  committing  magistrate.62 

§  1048.  Of  the  trial  and  judgment. — Trial  is  by  or- 
dinary proceedings,  and  the  determination  of  the  court 
upon  the  facts  has  the  effect  of  a  verdict  of  a  jury,63  and 
as  it  is  a  proceeding  at  law,  neither  party  is  entitled  to 
a  trial  de  novo  in  the  supreme  court.64  The  proceedings 
are  not  criminal  in  their  nature,  and  the  action  should 
be  in  the  name  of  the  person  alleged  to  be  illegally  re- 
strained and  not  in  the  name  of  the  State.65 

Where  the  applicant  is  remanded  to  the  custody  of  the 
defendant,  the  costs  can  not  be  taxed  to  the  county.66 
All  issues  in  the  case  are  to  be  tried  by  the  judge  or 
court.67  And  on  the  trial  the  written  testimony  taken 
before  the  committing  magistrate,  may  be  given  in  evi- 

60  Code.  Sees.  4442,  4449.  6*  Fouts  v.  Pierce,  64-71;  Shaw  v. 

61  Code,  Sec.  4449.  Natchwey,  43-653. 

ea  Code,  Sec.  4450.  es  state  v.  Collins,  54-441. 

63  Bonnett    v.    Bonnett,    61-199;          ee  state  v.  Collins,  54-441. 
Fouts   v.    Pierce,    64-71;    Kuhn    v.          67  Code,  Sec.  4449. 
Breen,  70  N.  W.,  722;    Jenkins  v. 
Clark,  71-552. 


§  1048.]  HABEAS     COEPUS.  251 

dence  in  connection  with  any  other  testimony  which  may 
then  be  produced.68  And  if  the  plaintiff  waived  exami- 
nation before  the  committing  magistrate,  it  will  not  pre- 
vent the  introduction  in  a  habeas  corpus  proceeding,  of 
testimony,  for  the  purpose  of  showing  that  he  is  detained 
upon  insufficient  evidence  to  sustain  the  charge.69 

The  warrant  of  committment  issued  to  the  sheriff  of 
the  county  in  which  the  examination  is  held  will  author- 
ize the  plaintiff's  detention  and  custody  by  the  sheriff.70 
It  is  not  permissible  to  question  the  correctness  of  the 
action  of  a  grand  jury  in  finding  a  bill  of  indictment,  or 
of  the  trial  jury  in  the  trial  of  a  cause,  nor  of  a  court  or 
judge  when  lawfully  acting  within, the  scope  of  their  au- 
thority.71 If  no  sufficient  cause  of  legal  detention  is 
shown,  the  plaintiff  must  be  discharged.72 

Although  the  commitment  of  the  plaintiff  may  have 
been  irregular,  still,  if  the  court  or  judge  is  satisfied  from 
the  evidence  before  them  that  he  ought  to  be  held  to  bail 
or  committed,  either  for  the  offense  charged  or  any  other, 
the  order  may  be  made  accordingly.73 

The  plaintiff  may  in  any  case  be  committed,  admitted 
to  bail,  or  his  bail  may  be  reduced  or  increased,  as  jus- 
tice may  require.74 

The  defendant  may  also  be  examined  and  committed, 
or  bailed  and  discharged,  according  to  the  nature  of  the 
case.75 

Until  the  sufficiency  of  the  cause  of  restraint  is  deter- 
mined, the  defendant  may  retain  the  plaintiff  in  his 
custody,  and  may  use  all  necessary  and  proper  means  for 
that  purpose.76  The  plaintiff  may  in  writing  waive,  or 
his  attorney  may  waive,  his  right  to  be  present  at  the 

es  Code,  Sec.  4450;  Cowell  v.  Pat-  Platt  v.  Harrison,  6-79;  Zelle  v. 

terson,  49-514;  State  v.  Rosencrans,  McHenry,  51-572;  State  v.  Orton, 

65-382.  67-554. 

GO  Cowell  v.  Patterson,  49-514.  72  Code,  Sec.  4452;   Shaw  v.  Mc- 

70  Cowell  v.  Patterson,  49-514.  Henry,    52-182;    State  v.    Kirkpat- 

71  Code,    Sec.    4451;     Turney    v.  rick,  54-373. 

Barr,   75-758;    Eisner   v.   Sprigley,          "  Code,    Sec.    4453;    Jackson    v. 

80-30;  State  v.  Zimmerman,  83-118;  Boyd,  53-536. 

Ex  parte  Grace,  12-208;    Ex  parte          74  Code,  Sec.  4454. 

Holman,  28-88;  Robb  v.  McDonald,          75  Code,  Sec.  4440. 

29-330;    State    v.    Seaton,    61-563;          TO  Code,  Sec.  4455. 


252  HABEAS     CORPUS.  [§  1049. 

trial,  in  which  case  the  proceedings  may  be  had  in  his 
absence.  If  the  waiver  is  made  before  the  writ  issues, 
it  should  be  modified  accordingly.77  And  in  such  case, 
the  form  of  writ  heretofore  given  will  be  changed  by 
omitting  the  clause  requiring  the  body  of  the  plaintiff  to 
be  produced. 

§  1019,  Of  proceedings  by  habeas  corpus  for  the 
custody  of  children. — In  cases  where  it  is  sought  by 
habeas  corpus  to  obtain  the  control  and  custody  of  chil- 
dren, the  controlling  consideration  is  the  interest  of  the 
child  itself.78  This  is  always  the  rule  when  the  parent 
seeking  the  custody  has,  either  by  abandonment  or  con- 
tract, surrendered  his  personal  legal  right  to  such  cus- 
tody.79 And  where  a  child,  by  permission  of  her  parents, 
resided  for  a  time  with  others,  who  sought  to  detain  her 
beyond  the  expiration  of  the  time,  and  with  whom  she 
preferred  to  remain,  it  was  held  that  while  the  wishes  of 
the  child  should  not  be  disregarded,  yet  the  controlling 
consideration  would  be  the  best  interests  of  the  child, 
with  due  regard  to  the  natural  rights  of  the  parents.80 
As  between  the  father  and  mother  of  a  child,  the  former 
has  no  particular  right  to  its  custody,  and  it  will  be 
awarded  so  as  best  to  promote  the  interests  of  the 
child.81 

Nor  is  the  right  of  the  parents  to  the  custody  of  their 
children  absolute  under  all  circumstances;  they  may 
surrender  the  custody  of  the  child  to  another,  either  by 
abandonment  or  contract,  and  in  such  case  the  matter  of 
primary  importance  is  the  interest  and  welfare  of  the 
child.82 

A  step-father  of  minor  children,  who  are  members  of 
his  family,  stands  in  loco  parentis  to  such  children,  and, 
under  ordinary  circumstances,  can  make  no  claim  for 
their  support  and  maintenance.83 

"  Code,  Sec.  4456.  so  state  ex  rel.  Shaw  v.  Nacht- 

TS  Fouts  v.  Pierce,  64-71;  Jenkins  wey,  43-653. 

v.  Clark,   71-552;    Kuhn  v.   Breen,  si  State  v.  Kirkpatrick.  54-373. 

70  N.  W.,  722.  *2  Bonnett  v.  Bennett,  61-199. 

™  Bonnett    v.    Bonnett,     61-199,  ss  Latham  v.  Meyers,  57-519. 
and  eases  cited;  see  Drum  v.  Keen, 
47-435. 


§  1050.]  HABEAS     COEPUS.  253 

§  1050.  Of  disobedience  of  an  order  of  discharge- 
Filing  of  papers — Costs. — Disobedience  to  an  order  of 
discharge  subjects  the  defendant  to  attachment  for  con- 
tempt, and  also  to  the  forfeiture  of  one  thousand  dollars 
to  the  party  aggrieved,  besides  all  damages  sustained  by 
him  in  consequence  of  such  disobedience.84  When  the 
proceedings  are  before  a  judge,  except  when  the  writ  is 
refused,  all  the  papers  in  the  case,  including  his  official 
.order,  must  be  filed  with  the  clerk  of  the  district  court 
of  the  county  wherein  the  final  proceedings  are  had,  and 
a  memorandum  thereof  must  be  entered  by  the  clerk  in 
liis  judgment  docket.85  If  the  plaintiff  is  discharged, 
the  costs  must  be  taxed  to  the  defendant  unless  he  is  an 
officer  holding  the  plaintiff  in  custody  under  a  warrant 
of  arrest  or  commitment,  or  under  other  legal  process, 
in  which  case  the  costs  must  be  taxed  to  the  county.  If 
the  plaintiff's  application  is  refused,  the  costs  must  be 
taxed  against  him,  and,  in  the  discretion  of  the  court, 
against  the  person  who  filed  the  petition  in  his  behalf.88 

s*  Code,   Sec.  4457.  so  Code,  Sec.  4459;  State  v.  Col- 

ss  Code,  Sec.  4458;  see  also  chap-      lins,  54-441. 
ter  on  Appellate  Proceedings. 


CHAPTER  LXV. 

OP  THE  HOMESTEAD. 

Sec.  1051.  When  the  homestead  is  exempt. 

1052.  When  it  is  not  exempt. 

1053.  Same— Of  debts  contracted  prior  to  its  purchase. 

1054.  When  sold  for  debts  created  by  written  contract. 

1055.  Of  the  head  of  the  family. 

1056.  Of  conveyance,  incumbrance,  judgments,  etc. 

1057.  Of  the  extent  of  the  homestead. 

1058.  Same — Of  several  lots 

1059.  Same — What  it  embraces. 

1060.  Of  selecting  and  platting  the  homestead. 

1061.  Of  changing  the  limits  of  the  homestead. 

1062.  Of  pleading  and  practice. 

1063.  Of  dispute  as  to  what  constitutes  the  homestead — How  de- 

termined. 

1064.  Of  the  action  of  the  court,  etc. 

1065.  Of  the  occupation  of  the  homestead  by  the  survivor,  etc. 

1066.  Of  the  election  to  hold  the  homestead  in  lieu  of  dower. 

1067.  Of  the  disposal  of  the  homestead. 

1068.  Of  sale  or  devise  of  the  homestead. 

1069.  Of  abandonment  of  the  homestead. 

Section  1051.  When  the  homestead  is  exempt, — Ex- 
cept when  otherwise  provided  by  statute,  the  homestead 
of  every  family,  whether  owned  by  the  husband  or  wife, 
is  exempt  from  judicial  sale,  and  so  may  be  the  proceeds 
of  a  sale  of  the  homestead,  where  sold  with  the  intention 
of  investing  in  a  new  one  and  the  husband  dies  before  re- 
ceiving such  proceeds.1  Where  a  homestead  acquired 
previous  to  the  creation  of  a  debt,  was  sold  by  the  owner 
for  other  property  of  less  value,  which  last  homestead 
was  acquired  after  the  contraction  of  the  debt  but  before 
judgment  was  rendered  thereon,  the  new  homestead  was 

iCode,  Sec.  2972;  Schuttloffel  v.  Collins,  67  N.  W.,  337. 
254 


§  1051.]  THE    HOMESTEAD.  255 

exempt.2  The  homestead  character  does  not  attach  to 
property  until  it  is  actually  occupied  as  a  home.  A  mere 
intention  to  occupy  it  is  not  sufficient.3  The  fact  that 
the  vendor  retains  the  legal  title  as  security  for  the  un- 
paid purchase  money  will  not  defeat  the  vendee's  claim 
to  a  homestead  in  the  property.4  A  tenant  in  common 
may  hold  a  homestead  in  his  interest  in  the  undivided 
premises.5  And  so  a  tenant  holding  by  an  equitable  title 
may  have  a  homestead  in  lands  which  he  occupies  as  a 
home.6  And  a  building  erected  on  leased  land  and  occu- 
pied by  the  family  as  a  home  becomes  a  homestead.7  And 
when  the  dwelling  house  is  situated  on  land  of  the  wrife 
lying  contiguous  to  that  owned  by  the  husband  and  both 
tracts  were  occupied  as  a  homestead,  it  wTas  held  that  the 
wife,  as  against  her  husband's  creditors'  Bright  claim  a 
homestead  carved  in  part  out  of  her  own  land,  and  in 
part  out  of  the  husband's.8  An  unmarried  woman  who 
had  accepted,  protected,  and  was  providing  for  children 
of  a  deceased  sister,  wras  held  entitled  to  the  homestead 
exemption.9  While  a  judgment  under  which  a  home- 
stead is  not  liable  to  sale  does  not  attach  as  a  lien  there- 
on, yet  it  will  attach  if  the  homestead  is  abandoned.10 
The  homestead  of  every  pensioner  who  is  a  resident  of 
this  State,  whether  he  is  the  head  of  a  family  or  not, 
which  is  purchased  and  paid  for  with  pension  money  or 
the  proceeds  or  accumulation  of  such  money,  is  exempt, 
and  such  exemption  applies  as  against  debts  of  such 
pensioner  contracted  prior  to  the  purchase  of  such  home- 
stead.11 Where  a  portion  of  the  homestead  was  by  prop- 

zpierson  v.  Minturn,  18-36;    but  rington,   93-108;    Neal  v.  Coe,  35- 

ece  First  Nat'l  Bk.  v.  Thompson,  407. 

72-417.  *  Stinson     v.     Richardson,     44- 

3  Charless  r.  Lambertson,  1-435;  373;  Lessell  v.  Goodman,  66  N.  W., 

Williams  v.  Swetland,  10-51;  Chris-  917. 

ty  v.  Dyer,  14-438;  Cole  v.  Gil).  14-  &  Thorn  v.  Thorn,  53-706;  Bolton 

527;  Hale  v.  Heaslip,  16-451;  Page  v.  Oberne,  79-278. 

v.  Ewbank,  18-580;  Elston  v.  Rob-  «  Hewett  v.  Rankin,  41-35. 

inson,  23-208;  Givans  v.  Dewey,  47-  *  f  elan  v.  DeBevard   13-53. 

414;  Yost  ,  Devault,  9-60;  Neal  ,  J^^g^JMM 

Coe,  35-407;    Cogwell  v.  Warring-  10  Lamb  v.  Shays,  14-567;   Cum- 

ton,  66-666;    First  Nat'l  Bk.  v.  Hoi-  min^s  v.  Long,  1<J-41. 

lingsworth,  78-575;    Mann   v.   Car-  n  Code,  Sec.  4010. 


256  THE    HOMESTEAD.  [§  1052. 

er  proceedings  condemned  for  right  of  way,  the  dam- 
ages allowed  are  exempt  from  execution;  whether  the 
proceeds  of  a  voluntary  conveyance  by  the  husband  of  a 
portion  of  the  homestead  for  the  right  of  way  would  be 
exempt,  quaBre.12  And  carrying  this  doctrine  still  fur- 
ther, it  is  held  that  a  judgment  for  damages  done  to  a 
homestead  can  not  be  garnished  to  satisfy  another  judg- 
ment which  is  not  a  lien  on  the  homestead.13  A  convey- 
ance of  the  homestead  property  by  the  husband  to  the 
wife  will  not  affect  its  homestead  character.14  The  giv- 
ing of  notice  of  the  sale  of  the  homestead  on  execution 
will  not  prevent  the  owner  from  claiming  the  same  as 
against  a  purchaser  at  such  a  sale.15  Rents  accruing 
under  a  lease  of  the  homestead  to  a  tenant  are  exempt.18 
And  see  further  as  to  homestead  exemption,17  and  see 
further.18 

§  1052.  When  it  is  not  exempt. — The  homestead  is 
liable  for  taxes  and  subject  to  mechanic's  liens  for  work, 
labor  or  material  done  or  furnished  exclusively  for  the 
improvement  of  the  same,  and  the  whole  or  sufficient 
portion  thereof  may  be  sold  to  pay  such  claims.19  A  sale 
of  a  tract  of  land  of  which  the  homestead  constitutes  a 
part,  for  delinquent  taxes  on  the  whole  tract,  is  void.20 
And  the  homestead  right  is  subordinate  to  the  right  of 
the  vendor  for  his  unpaid  purchase  money.21  One  part- 
ner can  not  acquire  a  homestead  right  in  real  estate  be- 
longing to  the  firm.22  Nor  can  a  purchaser  of  a  pre-emp- 
tion claim,  until  he  has  obtained  his  title  from  the  gov- 
ernment.23 

12  Kaiser  v.  Seaton,  62-463.  20  steward     v.     Corbin,     25-144; 

13  Mudge  v.  Lanning,  68-641.  Brumeister  v.  Dewey,  27-468. 

i*  Green  v.  Farrar,  53-426.  21  Christy  v.  Dyer,  14-438;    Cole 

15  Jones  v.  Blumenstein,  77-361.  v.   Gill,    14-527;    Burnap   v.    Cook, 

is  Morgan   v.    Rountree,    88-249;  16-149;  Hyatt  v.  Spearman,  20-510; 

see  Clark  v.  Raymond,  86-661.  Hurley  v.   Gilchrist,   13-594;    Bills 

i'  Reeseman    v.     Davenport,    65  v.  Mason,  42-329. 

N.  W.,  301;  Fordyce  v.  Hicks,  80-          22  Drake  v.   Moore,   66-58;    Hoyt 

272.  v.  Hoyt,  69-174;   State  v.  Cadwell, 

i«  Wells  v.  Anderson,  66  N.  W.,  79-432. 

102.  23  Le  Land  v.  Day,  45-37. 

is»  Code,   Sees.  2975,  1423;    Penn 

v.  Clemans,  19-372. 


§  1053.]  THE    HOMESTEAD.  257 

It  is  held  that  when  a  part  of  a  house  and  lot  owned  by 
the  wife  and  occupied  as  a  homestead,  was  used  by  the 
husband  for  a  saloon,  such  part  was  subject  to  execution 
for  the  satisfaction  of  a  judgment  against  the  husband 
for  damages  for  the  unlawful  sale  of  liquors  therein.24 
If  the  homestead  right  is  relied  on  as  against  a  mort- 
gage, it  must  be  pleaded  in  the  foreclosure  proceeding, 
or  it  will  be  lost.25  When  there  is  an  exchange  of  home- 
steads, and  one  of  the  parties  remains  temporarily  there- 
after in  his  old  homestead,  his  rights  are  less  than  and 
antagonistic  to  the  possession  necessary  to  constitute  a 
homestead.26 

§  1053.  Same — Of  debts  contracted  prior  to  its 
purchase. — The  homestead  may  be  levied  on  and  sold  for 
debts  contracted  prior  to  its  acquisition,  but  in  such 
cases  it  can  only  be  sold  to  supply  the  deficiency  remain- 
ing after  exhausting  the  other  property  of  the  debtor 
liable  to  execution.27  But  the  conveyance  of  a  home- 
stead by  a  husband  to  his  wife  will  not  render  it  liable 
for  her  debts  contracted  prior  to  such  conveyance.28  A 
widow  having  elected  to  occupy  the  homestead  for  life, 
and  acquiring  by  inheritance  from  an  heir  an  undivided 
share  of  the  reversion,  such  share  will  be  subject  to  exe- 
cution for  her  debts.29  The  homestead  may  be  sold  in 
satisfaction  of  a  debt  for  its  purchase  money,  and  a  mort- 
gage of  the  husband  alone  to  secure  such  purchase  money 
is  valid.30  It  can  only  be  sold  to  supply  a  deficiency  re- 
maining after  exhausting  the  other  property  of  the 

24  Arnold  v.  Gotshall,  71-572;  Me-  ningham,  17-510;  Brainard  v.  Van 

Clure  v.  Braniff,  75-38.  Kuran,  22-261;  Sloan  v.  Waugh, 

asHaynes  v.  Meek,  14-320;  Col-  18-224;  Higley  v.  Millard,  45-586; 

lins  v.  Chantland,  48-241;  Larson  Bills  v.  Mason,  42-329;  Butler  v. 

v.  Reynolds,  13-579.  Nelson,  72-732;  Lamb  v.  McConkey, 

26  Windle  v.  Brandt,  55-221.  76-47. 

27  Code,    Sec.    2976;     Phelps     v.  28  White  v.  Kinley,  92-598. 
Finn,  45-447;   Warner  v.  Cammack,  20  strong  v.  Garrett,  90-100. 
37-642;    Denegre  v.  Haun,   14-240;  so  Christy  v.  Dyer,  14-438;  Barnes 
Barhydt  v.  Bonney,  55-717;  Greely.  v.  Gay,  7-26;   Cole  v.  Gill,  14-527; 
v.  Sample,  22-338;  Hale  v.  Heaslip,  Burnap  v.  Cook,  16-149;   Hyatt  v. 
16-451;  Hyatt  v.  Spearman,  20-510;  Spearman,  20-510;   Bills  v.  Mason, 
Elston  v.  Robinson,  23-208;   Green  42-329;   Campbell  v.  McGinnis,  70- 
V.   Farrer,   53-426;    Laing   v.   Cun-  589. 

Vol.  II—17 


258  THE    HOMESTEAD.  [§  1053. 

debtor  liable  to  execution.31  But  the  right  to  compel  a 
creditor  to  first  exhaust  other  property  does  not  exist  in 
favor  of  a  third  person  purchasing  the  homestead  after 
the  execution  of  the  mortgage  under  which  the  sale  is 
had.32  And  if  one  claiming  a  homestead  right  seeks  to 
restrain  a  sale  of  the  homestead  on  a  judgment  on  a  debt 
for  which  it  is  liable,  on  the  ground  that  the  debtor  has 
other  property  not  exempt,  which  should  be  first  ex- 
hausted, he  must  make  that  fact  appear  affirmatively.33 
The  interest  of  a  defendant  in  the  assets  of  a  partner- 
ship of  which  he  is  a  member,  must  be  exhausted  before 
resort  can  be  had  to  the  homestead.34  The  lien  of  a  judg- 
ment on  an  indebtedness  contracted  prior  to  the  acquisi- 
tion of  the  homestead  attaches  from  date  of  the  creation 
of  the  indebtedness,  and  not  from  the  date  of  the  judg- 
ment.35 In  case  of  an  exchange  of  homesteads  the  new 
one  will  be  liable  for  an  existing  debt  for  the  purchase 
money  of  the  old  one,  the  liability  being  transferred  by 
operation  of  law.36  And  the  homestead  will  be  liable  to 
sale  for  debts  previously  contracted  in  another  State, 
after  the  debtor's  other  property  is  exhausted.37  But 
when  the  sheriff  on  a  sale  on  foreclosure  of  a  mortgage 
embracing  a  homestead,  first  offers  the  land  in  forty- 
acre  tracts  according  to  the  government  subdivisions, 
and,  receiving  no  bids,  offers  and  sells  the  whole  includ- 
ing the  homestead,  such  sale  will  not  be  set  aside.38  The 
homestead  descends  to  the  issue  of  the  owner  charged 
with  the  debts  of  the  latter  which  in  his  lifetime  could 
have  been  enforced  against  it  only.39  A  judgment 
against  a  surviving  husband  is  not  a  lien  upon  his  home- 
stead rights  in  the  lands  of  his  wife,  unless  he  has  aban- 

31  Dilgerv.  Palmer,  60-117 ;  Equit-      261;    Laing    v.    Cunningham,    17- 
able   L.    Ins.   Co.    v.    Gleason,    62-      510. 

277;   Grant  v.  Parsons,  67-31.  3»  Brumbaugh  v.  Shoemaker,  51- 

32  Barker     v.     Rollins,     30-412;      148;  Brumeister  v.  Dewey,  27-468; 
Kemerer  v.  Bournes,  53-172.  Eggers  v.   Redwood,   50-289:     and 

ss  Hale  v.  Heaslip,  16-451;  Stev-  see  Smith  v.  De  Kock,  81-535. 

ens  v.  Myers,  11-183.  3»  Moninger  v.   Ramsey,  48-368; 

3-t  Lambert  v.  Powers,  36-18.  Kite  v.  Kite,   79-491;    In  re  Coul- 

35  Bills  v.  Mason,  42-329.  son's  Estate,  64  N.  W.,  755;    Ma- 

se  Bills  v.  Mason,  42-329.  guire  v.  Kennedy,  91-272. 
37  Brainard    v.   Van    Kuran,    22- 


§  1053.  J  THE    HOMESTEAD.  259 

doned  them,  nor  can  he  create  a  valid  lien  thereon  by  the 
execution  of  a  mortgage.40  A  delay,  by  the  creditor  hold- 
ing an  indebtedness  contracted  prior  to  the  purchase  of, 
and  which  is  a  lien  on  the  homestead,  in  enforcing  it, 
until  all  the  debtor's  other  property  is  disposed  of,  will 
not  affect  his  right  to  sell  the  homestead.41  The  entry 
of  land  under  the  homestead  laws  of  the  United  States 
is  a  purchase  within  the  meaning  of  the  homestead  law.42 
The  conveyance  of  the  homestead  by  the  husband  to  the 
wife  does  not  render  it  liable  to  the  debts  of  the  wife  con- 
tracted prior  to  such  conveyance.43 

Nor  is  a  judgment  recovered  against  a  wife  after  the 
husband's  death  a  lien  on  the  homestead  which  was  oc- 
cupied as  such  both  before  and  after  his  death.44  A  fail- 
ure to  plat  the  premises,  or  have  the  same  recorded,  does 
not  render  them  liable  for  debts  incurred  by  the  wife 
after  her  husband's  death.45  When  it  does  not  appear 
from  the  judgment  itself  that  the  debt  was  con- 
tracted prior  to  the  acquisition  of  the  homestead,  that 
fact  may  be  shown  aliunde.46  When  a  debt  contracted 
prior  to  the  purchase  of  the  homestead  has  become 
barred  and  is  renewed  by  a  new  note  given  subsequent 
to  the  acquisition  of  a  homestead,  it  remains  liable.47 
Under  the  revision,  section  2281,  it  was  held  that  the 
execution  of  a  mortgage  on  the  homestead  by  the  hus- 
band alone  to  secure  a  debt  contracted  prior  to  its  ac- 
quisition, created  no  additional  burden  so  far  as  the 
rights  of  the  wife  were  concerned,  but  was  not  valid  as 
to  innocent  purchasers  before  judgment  on  the  debt,  and 
the  recording  thereof  did  not  affect  them  with  notice,48 
The  homestead  right  is  equal,  if  not  superior,  in  dig- 
nity, to  any  other  legal  or  vested  right,  and  should  not 
be  disturbed  until  after  a  fair  sale  to  the  highest  bid- 

40  Smith  v.  Eaton,  50-488;  Meyer         *s  Nye  v.  Walliker,  46-306;    Lin- 
v     Meyer,    23-359;     Butterfield    v.      scott  v.  Lamart,  46-312. 

Wicks,  44-310.  46  Hale  v.  Heaslip,  16-451;   Dele- 

41  Denegre  v.  Haun,  14-240.  van    v     Pratt,    19-429;    PheJps    v. 
«  Green  v.  Farrer.  53-426.                    Finn    45-447. 

43  Same  as  No.  42.  «•  Sloan  v.  Waugh,  18-224. 

4*  Nye  v.  Walliker,  46-306.  **  Higiey  v.  Millard,  45-586. 


200  THE    HOMESTEAD.  [§1054. 

der  of  all  the  other  property  subject  to  execution.49  It 
is  an  interest  of  a  higher  nature  than  dower.50  A  con- 
veyance of  the  homestead  can  not  be  set  aside  as  a  fraud 
on  creditors  whose  claims  are  not  a  lien  against  it.51 
A  purchaser  of  a  homestead  subject  to  the  lien  of  a 
judgment  for  a  debt  contracted  before  its  acquisition, 
takes  it  subject  thereto,  and  in  case  of  sale  of  the  prop- 
erty thereon  has  no  other  right  than  that  of  redemp- 
tion.52 

§  1054.  When  sold  for  debts  created  by  writ- 
ten contract.  —  The  homestead  may  be  sold  on  execu- 
tion for  debts  created  by  written  contract,  executed  by 
the  parties  having  the  power  to  convey,  and  expressly 
stipulating  that  the  homestead  is  liable  therefor,  but 
it  can  not  in  such  cases  be  sold  except  to  supply  the  de- 
ficiency remaining  after  exhausting  the  other  property, 
pledged  for  the  payment  of  the  debt  in  the  same  writ- 
ten contract.53  It  is  not  necessary  in  the  execution  of 
a  mortgage  on  a  homestead  to  describe  it  as  a  "home- 
stead" in  such  conveyance.54  The  homestead  can  not 
be  subjected  to  liability  for  debt  upon  mere  oral  agree- 
ment.55 An  agreement  in  a  confession  of  judgment  to 
waive  the  benefit  of  exemption  laws  and  permit  execu- 
tion to  issue  against  any  property  of  the  debtor  including 
the  homestead,  is  not  such  a  written  contract  as  will  sub- 
ject the  homestead  to  liability.56  It  is  held  that  a  wife, 
by  joining  in  the  concluding  clause  of  a  deed  of  trust, 
did  not  thereby  convey  the  homestead  interest,  but  only 
relinquished  her  dower.57  In  the  cases  cited  below,  mort- 

49  Twogood    v.    Stevens,    19-405;  hold  v.  Kraft,  78-661;  Blake  v.  Mc- 

Lay  v.  Gibbons,  14-334;  Linscott  v.  Cosh,  91-544. 

Lamart,  46-312.  »•*  Babcock  v.  Hoey,  11-375:  Rey- 

5"  Larson    v.    Reynolds.    13-582;  nolds  v.  Morse,  52-155:  O'Brien  v. 

see  Sharp  v.  Bailey,  14-387.  Young,  15-5;  Van  Sickles  v.  Town, 

si  Altman     v.     Heiney.     59-654;  53-259;  Waterman  v.  Baldwin,  68- 

Roane  v.  Hamilton,  70  N.  W..  181.  255. 

52  Kimball  v.  Wilson,  59-638.  "  Rutt  v.  Howell,  50-535. 

63  Code.  Sec.  2976;  Hale  v.  Heas-  SR  Rutt  v    Howell,  50-535;    Bock- 

iip,    16-451;    Twogood     v     Stevens,  hold    v     Kraft,    78-661;    Blake    v. 

19-405:     Lay    v.    Gibbons.    14-377;  McCosh.  91-544. 

Stevens  v    Myers.  11-185:    Foley  v.  s-  Sharp  v.   Bailey.  14-387;    Gra- 

Cooper.  43-376:   Dickson   v.  Chorn,  pengather     v.     Fejervary.     9-163; 

6-19;  Rutt  v.  Howell,  50-535;  Bock-  Schaffner    v.    Grutzmacher,    6-137; 


§  1054.]  THE    HOMESTEAD.  261 

gages  on  homesteads  procured  by  fraud  were  held  void.58 
The  provisions  of  section  2976  of  the  code  do  not  apply  to 
a  third  person  who  purchases  the  property  after  the  ex- 
ecution of  a  mortgage  thereon,  nor  afford  it  in  his  hands 
any  exemption  from  sale  in  satisfaction  of  the  mort- 
gage.59 When  a  widow  elects  to  take  her  distributive 
share  of  the  deceased  husband's  estate  under  the  law, 
and  when  such  share  embraces  a  part  or  all  of  the  home- 
stead, she  does  not  surrender  her  right  to  have  the  prop- 
erty, other  than  that  set  apart  to  her,  first  exhausted  in 
payment  of  a  mortgage  lien  on  the  whole  premises.60 

It  has  been  held  that  the  homestead  is  not  liable  to 
sale  for  the  satisfaction  of  a  decree  for  alimony,  entered 
long  after  the  homestead  was  acquired.61  Temporary 
absence  of  several  months  leaving  the  homestead  in  the 
possession  of  a  tenant  is  held  not  to  be  an  abandon- 
ment62 The  words  "other  property,"  in  section  2976  of 
the  code,  are  held  to  be  limited  to  the  property  which 
belonged  to  the  mortgagor  at  the  time  of  foreclosure, 
but  Justice  Beck  dissents  from  this  construction  of  the 
statute.63  Where  possession  of  the  property  as  a  home- 
stead is  taken  pending  foreclosure  proceedings,  the  wife 
has  no  right  she  could  assert  against  the  mortgage;  not 
even  to  compel  plaintiff  to  first  exhaust  other  property.64 
When  a  mortgage  is  executed  by  a  husband  on  the  home- 
stead before  marriage,  it  is  a  lien  prior  to  any  claim  the 
wife  may  have  by  such  marriage,  but  she  should  be  made 
a  party  in  a  suit  of  foreclosure.65  The  right  to  compel  a 
sale  of  other  property  before  the  homestead  is  sold,  can 
not  be  enforced  by  cross-action,  but  by  special  direction 
in  the  execution,  and  may  be  set  up  in  the  answer,  or  ob- 
tained upon  a  supplemental  showing.66  When  a  rnort- 

Westfall   v.    Lee,  7-12;    Larson  v.          60  Wilson  v.  Hardesty,  48-515. 
Reynolds.  13-579;    Fuller  v.  Hunt,          «i  Byers  v.  Byers,  21-268;  Whit- 

48-163;  Wilson  v.  Christopherson,  comb  v.  Whitcomb.  42-715. 
53-481;    Eisenstadt  v.   Cramer,   55-          62  Robb  v.  JVTcBrirle,  28-386;  Mor- 

733;  see  Reynolds  v.  Morse,  52-155.  ris  v.  Sargent,  18-90. 

ss  Cutler  v.  Rose,  35-456;  Lay  v.          03  Dilger  v.  Palmer,  60-117. 
Gibbons,  14-377.  «*  Kemerer  v.  Bournes.  53-172. 

B»  Parker     v.     Rollins.     30-412;          es  Chase  v.  Abbott,  20-154. 
Kemerer  v.  Bournes,  53-172.  ee  Barker  v.  Rollins,  30-412. 


262  THE    HOMESTEAD.  [§   1U55. 

gage  is  given  covering  the  homestead  and  other  land, 
and  afterward  a  second  mortgage  is  executed  on  the 
same  land  except  the  homestead,  and  the  second  mort- 
gage is  foreclosed  and  lands  covered  by  it  sold,  the  pur- 
chaser can  not  insist  that  the  homestead  be  first  sub- 
jected to  the  payment  of  the  first  mortgage.67  When  a 
homestead  was  sold  under  a  special  execution  and  the 
surplus  in  the  sheriff's  hands  applied  on  other  execu- 
tions against  the  defendant,  and  such  executions  weiv 
upon  judgments  which  could  not  be  enforced  against  the 
homestead,  such  application  having  been  made  without 
objection  on  the  plaintiff's  part,  he  can  not  recover  such 
surplus  in  an  action  against  the  sheriff.68  In  some  cases 
it  is  held  that  equity  will  not  interefere  to  set  aside  a 
sale.69 

§  1055.  Of  the  head  of  the  family. — A  widow  or 
widower,  though  without  children,  will  be  deemed  the 
head  of  a  family  while  continuing  to  occupy  the  real 
estate  used  as  a  homestead  at  the  time  of  the  death  of 
the  husband  or  wife,  and  such  right  will  continue  to  the 
party  to  whom  it  is  adjudged  in  a  decree  of  divorce,  dur- 
ing continued  personal  occupancy.70  The  title  to  the 
homestead,  on  the  death  of  the  owner,  leaving  a  widow, 
vests  in  the  heirs,  the  right  of  the  widow  being  limited 
to  that  of  occupancy.71  The  abandonment  of  the  home- 
stead by  the  widow,  wThen  there  are  surviving  heirs,  does 
not  render  it  liable  for  debts,  other  than  those  which 
were  liens  on  it  before  the  death  of  the  owner.72  Nor 
need  the  homestead  be  occupied  by  the  heirs,  in  such  a 
case,  to  be  protected.73  A  widower  without  children, 
acquiring  real  property,  which  he  occupies  as  a  home- 
stead for  himself  and  mother,  who  is  the  only  other  mem- 
ber of  his  family,  is  the  head  of  the  family.74  Where  a 
divorce  was  granted  the  wife,  and  she  was  given  the 

67  Equitable    Life    Ins.    Co.     v.          71  Johnson  v.  Gaylord,  41-362. 
Gleason.  62-277.  72  Same  as  No.  71. 

68  Brumbach  v.  Zollinger.  59-384.          73  Same  as  No.  71. 

69  Sigerson  v.  Sigerson,  71-476.  1*  Parsons  v.  Livingstone,  11-104. 
TO  Code,  Sec.  2973;  Floyd  v.  Mos- 

ier,  1-512. 


§   1050.]  THE    HOMESTEAD.  263 

custody  of  the  children,  that  does  not  render  the  home- 
stead remaining  in  the  husband's  possession  liable  for 
his  debts.75  A  widow  can  not  enjoy  both  dower  and 
homestead  rights  in  her  deceased  husband's  property.78 
And  it  seems  that  occupancy  of  the  homestead  will  often 
be  deemed  an  election  to  take  it  in  lieu  of  dower.77  After 
the  death  of  either  husband  or  wife  the  survivor  has  the 
right  to  occupy  the  whole  homestead,  without  regard  to 
which  of  them  had  the  legal  title,  or  whether  or  not  there 
was  issue.78 

§  1056.  Of  conveyance,  incumbrance,  judgments, 
etc.  —  A  conveyance  or  incumbi'ance  of  the  homestead, 
or  a  contract  to  convey  or  encumber  it,  by  the  owner  is 
of  no  validity  if  the  owner  is  married,  unless  the  hus- 
band and  wife  join  in  and  sign  the  same  joint  instru- 
ment.79 But  a  conveyance  of  all  the  real  estate  owned  at 
the  time  by  the  grantors  (husband  and  wife),  without 
more  particular  description,  also  covers  the  home- 
stead.80 And  an  agreement  by  the  husband  to  convey 
the  homestead,  which  is  not  concurred  in  by  the  wife,  is 
void.81  No  damages  are  recoverable  for  breach  of  a  con- 
tract made  by  a  husband  alone  to  convey  the  home- 
stead.82 Abandonment  of  the  homestead  will  not  affect 
the  wife's  rights,  except  to  render  it  liable  to  the  hus- 
band's debts,  and  the  assignee  of  a  bond  taking  posses- 

75  Woods  v.  Davis,  34-264.  McCosh,   91-544;    Drake  v.    Moore, 

76  Meyer  v.   Meyer,  23-359;    But-      66-58;    Belden  v.  Younger,  76-567; 
terfield  v.  Wicks,  44-310.  Guion  v.  Ciller,  70  N.  W.,  201. 

"  Stevens     v.     Stevens,     50-491;  so  Waterman  v.  Baldwin,  68-255; 

Cunningham     v.     Gamble,     57-46;  see  Babcock  v.  Hoey,  11-375. 

Conn   v.  Conn,   58-747;    Butterfield  si  Clay    v.    Richardson,    59-484; 

v.     Wicks,     44-310;      Holbrook     v.  Wilson  v.  Christopherson,  53-481; 

Perry.  66-286;  Smith  v.  Zuckmeyer,  Spoon     v.     Van     Fossen,     53-494; 

53-14.  Williams  v.  Swetland,  10-51;  Lar- 

7*  Burns  v.  Keas,  21-257.  son  v.  Reynolds,  13-579;  Burnap 

79  Code,  Sec.  2974;  Lunt  v.  Neely,  v.  Cook,  16-149;  Burnett  v.  Men- 

67-97;    Burnett  v.   Mendenhall,  42-  denhall,   42-296;    Allen  v.   Bay,   9- 

296;     Stinson    v     Richardson,    44-  509;    Yost  v.  Devault,  9-60;   Eli  v. 

373;  Harsh  v.  Griffin.  73-608;  Lunt  Gridley,   27-376;    Stinson   v.   Rich- 

v.    Neeley,    67-97:    Rogers    v.    Me-  ardson.    44-373;    Clark    v.    Evarts, 

Farland.  89-286;  Higley  v.  Millard,  46-248:    Garlock  v.   Baker,  46-334; 

45-586;    Garlock    v.   Baker.   46-334;  Anderson  v.  Culbert,  55-233. 

Cowgell     v.     Warrington.      66-666;  «*  Barnett  v.  Mendenhall,  42-296; 

Harding  v    Des  Moines  Nat']  Bk.,  Cowgel)     v.    Warrington,     66-666; 

81-499;  Woolcut  v.  Lerdell.  78-668:  see    Downer    v.    Rodenbaugh,    61- 

Bolton  v.  Oberne,  79-278:   Blake  v.  269. 


264  THE    HOMESTEAD.  [§  IGoG. 

sion  under  an  assignment,  in  which  the  wife  did  not  join, 
was  held  accountable  for  rents  and  profits,  and  entitled 
to  compensation  for  improvements.83  The  record  of  an 
instrument  incumbering  the  homestead  imparts  no  no- 
tice to  subsequent  purchasers,  unless  the  instrument 
was  concurred  in  and  signed  by  both  husband  and  wife.84 
A  conveyance  of  the  homestead  which  is  void  will  be 
set  aside  at  the  suit  of  the  wife,  in  which  the  husband  is 
joined  as  co-plaintiff.85  It  is  held  that  a  license  to  re- 
move minerals  from  land  occupied  as  a  homestead,  when 
its  use  as  a  homestead  is  not  impaired  thereby,  may  be 
given  by  the  husband  alone,  when  he  is  the  owner;86  so 
it  is  held  that  the  husband  may  make  a  valid  conveyance 
of  the  right  of  way  over  the  homestead  without  the  wife's 
concurrence  or  signature  to  the  deed,  the  husband  being 
the  owner,  when  such  conveyance  will  not  defeat  the 
substantial  enjoyment  of  the  homestead  as  such.87  A 
wife  may  ratify  a  void  conveyance  of  her  homestead  in 
all  cases  when  a  similar  deed  of  other  property  could  be 
ratified  by  assent  of  the  parties  express  or  implied  from 
their  acts.88  But  a  mere  verbal  assent  will  not  amount 
to  such  ratification.89  A  contract  for  the  conveyance  of 
the  homestead  by  a  married  man  which  is  not  concurred 
in  by  his  wife  is  void,  and  can  not  be  enforced,  even 
though  the  consideration  has  been  paid.90  The  rights  of 
the  wife  in  the  homestead  are  such  that  she  can  redeem 
from  a  tax  sale  or  an  execution  sale  of  it.91  A  mortgn  n-e 
given  for  the  purchase  money  of  the  homestead  by  the 
husband  alone  is  good  and  it  may  be  renewed  by  him 
without  the  wife's  joining  therein.92  If  the  wife  actually 


ss  Stinson  v.  Richardson,  44-373;  Lumber  Co.  v.  Hartwell,  63  N.  W., 

see  Pelan  v.  De  Bevard,  13-53.  333. 

s*  Higley  v.   Milliard,  45-586.  R9  Downer    v.    Rodenbaugh,    61- 

ss  Eli  v    Gridley    27-376  269:  Stinson  v.  Richardson.  4-1-373; 

seHarkness  v.  Burton,  39-101.  Anderson  v    Culbert.    55-!     :     and 

_.    „,    _...    ._     „          '       .  see  Clay  v.  Richardson,  59-483. 

QB  i£  L        R'  r%  V,'  l,WpnRey>  <*>  Anderson  v.  Culbert,  55-233. 

^8~18  ;  I?  w™,va>        "\,S'          7'  91  Adams  v.  Beale,  19-61;    Bvers 

Co.  v.  McWilhams,   71-164.  y    Johnson,  89-278. 

ss  Spafford  v.  Warren,  47-47;  see  92  chrysty  v.  Dyer,  14-38:  Mahon 

Clark  v.  Evarts,  46-248;  Corbin  v.  v.    Cooley,   36-479;    see   Burnap   v. 

Minchen,  81-682;   Seiffert  &  Wiese  Cook,  16-149. 


§  1056.]  THE    HOMESTEAD.  265 

sign  an  instrument  of  conveyance  or  incimibrance  of  the 
homestead  she  will  not  thereafter  be  permitted  to  dis- 
pute its  validity  on  the  ground  that  she  was  ignorant  of 
its  contents,  or  that  she  was  induced  to  do  so  by  fraud, 
or  deception  of  her  husband,  unless  it  be  shown  that  the 
grantee,  or  mortgagee,  had  knowledge  of  the  same.93  A 
conveyance  of  the  homestead  from  the  husband  to  the 
wife  will  not  vest  her  with  such  title  that  she  alone  can 
make  a  valid  conveyance  thereof.94  A  mortgage  to 
which  the  concurrence  of  the  wife  is  obtained  by  duress 
is  void.95  An  express  agreement  on  the  part  of  a  wife  to 
convey  a  homestead  will  not  bind  her  if  not  in  writ- 
ing.96 The  subsequent  adoption  of  property  as  a  home- 
stead will  not  affect  conveyances  previously  made.97 
And  when  leased  premises  are  occupied  as  a  homestead 
the  husband  alone  can  not  make  a  valid  assignment  of 
such  lease.98 

And  the  same  is  true  where  it  is  held  under  a  contract 
of  purchase.99  If  the  wife  is  insane  when  she  joins  in  the 
conveyance  of  the  homestead  it  will  be  invalid.1  The 
wife  may  join  in  a  mortgage  of  the  homestead  for  the 
payment  of  her  husband's  debts,  or  to  secure  their  joint 
note.2  It  is  held  that  when  one  takes  possession  of  a 
homestead  under  a  void  transfer,  but  in  good  faith,  and 
makes  improvements  which  are  proper,  he  is  entitled  to 
an  allowance  for  the  same,  but  whether  the  wife,  who  in 
such  case  attempted  to  convey  the  homestead,  can  re- 
cover rents  and  profits,  quaere.3  If  the  title  to  the  home- 
stead has  its  inception  in  fraud,  the  homestead  charac- 
ter can  not  be  set  up  as  against  the  claim  of  the  one  from 
whom  it  was  obtained.4  A  judgment  defendant  who  is 

93  Edgell  v.  Hagens,  53-223;  Van  v.  Richardson,  44-373. 

Sickles  v.  Town,  53-259;   ^Etna  L.  97  Yost  v.  Devault,  3-345. 

Ins.  Co.  v.  Franks,  53-618;  Sawyer  o&  Phelan  v.  De  Bevard,  13-53. 

v.   Perry,  62-238;    see  Johnston  v.  »»  Drake  v.  Moore,  66-58. 

McPherran,   81-230.  i  Alexander  v.  Vennum,  61-160; 

9-t  Spoon  v.  Van  Fossen,  53-494;  see  Abbott  v.  Creal,  56-175. 

Harsh  v.  Griffin,  72-608.  2  ROck  v.  Kreig,  39-239;  Low  v. 

95 1st  Nat'l  Bk.  v.  Bryon,  62-42.  Anderson,  41-476. 

96  Anderson   v.    Culbert,    55-233;  s  stinson  v.  Richardson,  44-373. 

Clay  v.  Richardson,  59-483;  Down-  *  Muir  v.  Bozarth,  44-499. 
er  v.  Rodenbaugh,  61-269;   Stinson 


2G6  THE    HOMESTEAD.  [§  105G. 

a  surety  for  his  co-defendant  may  show  that  the  judg- 
ment is  for  a  debt  antedating  the  acquisition  of  the 
homestead.5  Creditors  whose  claims  are  not  a  lien  on 
the  homestead  can  not  have  the  conveyance  of  it  set 
aside.6  Nor  will  a  voluntary  conveyance  of  a  homestead 
be  fraudulent  as  to  creditors  who  have  no  lien  there- 
on.7 The  law  regarding  homestead  has,  it  is  held,  no 
application  in  a  suit  for  divorce  and  alimony,  and  an  at- 
tachment may  issue  in  such  cases  against  the  home- 
stead.8 The  wife  will  not  be  affected  by  a  suit  foreclos- 
ing a  mortgage  against  the  homestead -to  which  she  is 
not  a  party,9  but  her  interest  in  a  homestead  covered  by 
a  mortgage  executed  by  the  owner  before  marriage  will 
be  junior  to  such  mortgage,  but  she  should  be  made  a 
party  to  a  suit  foreclosing  such  mortgage  to  cut  off  her 
dower  right.10  Ordinarily  one  will  be  precluded  from 
setting  up  a  homestead  right,  or  a  right  to  the  proceeds 
thereof,  who  fails  to  do  so  when  the  mortgage  is  fore- 
closed, or  when  he  consents  to  the  application  of  the 
surplus  on  such  sale  to  the  payment  of  certain  debts,  or 
when  it  is  sold  on  a  judgment  for  alimony.11  The  in- 
validity of  a  mortgage  on  a  homestead  executed  by  the 
husband  alone,  may  be  set  up  by  a  junior  mortgagee 
against  a  prior  mortgage.12  The  provisions  of  the  code, 
section  4292,  do  not  apply  in  case  of  homesteads.13  The 
debtor  can  not  enjoin  the  sale  of  the  homestead  on  exe- 
cution on  the  ground  that  his  other  property  has  not 
been  exhausted  unless  he  avers  that  he  has  other  prop- 
erty.14 Nor  can  he  complain  that  such  other  property  is 
not  first  exhausted  when  he  makes  no  objection  to  the 

s  Delevan  v.  Pratt,  19-429.  10  Chase  v.  Abbott,  20-154;   Lar- 

s  Aultman     v.     Heiney,     59-654;  son  v.  Reynolds,  13-579;  see  Good- 
Payne  v.  Wilson,  76-377;  Beyer  v.  rich  v.  Brown,  63-247. 
Thoemine;,  81-517;  Wells  v.  Ander-  n  Larson    v.    Reynolds,    13-579; 
son,  66  N.  W.,  102.  Haynes  v.  Meek,  14-320:  Collins  v. 

'  Delashmut  v.  Trau,  44-613;  Of-  Chantland,  48-241;    Brumbaugh  v. 

ficer   v.   Evans,   48-557;    Butler  v.  Zollinger,    59-384;     Hemenway    v. 

Nelson,  72-732;  Wheeler  &  Wilson  Wood,  53-21. 

Mfg.   Co.   v.    Bjelland,    66    N.   W.,  12  Allen  v.  Bay,  9-509. 

885.  is  Grant  v.  Parsons,  67-31. 

s  Code,    Sec.    3178;     Daniels     v.  "Stevens     v.      Myers,      11-183; 

Morris,  54-369.  Owens  v.  Hart,  62-620. 

9  Burnap  v.  Cook,  16-149. 


THE    HOMESTEAD.  267 

sale,  having  notice  thereof.15  When  a  husband  has  con- 
tributed a  portion  of  the  purchase  price  of  a  homestead, 
the  title  of  which  is  in  his  wife,  creditors  of  the  husband, 
whose  claims  antedate  the  acquisition  of  the  homestead, 
may  subject  it  to  the  satisfaction  of  such  claims  to  the 
extent  of  his  contribution  thereto.16  The  earnings  of  a 
wife  not  derived  from  her  separate  property  or  business, 
but  acquired  in  the  management  of  family  affairs,  are 
not  her  separate  property  so  that  she  can  invest  them  in 
her  homestead  and  have  it  exempt  from  the  debts  to 
which  such  homestead  would  be  liable  in  the  hands  of 
her  husband.17  Minor  children  have  no  such  interest  in 
the  homestead  of  their  parents  during  their  lifetime,  as 
the  law  will  enforce  against  the  contracts,  or  acts  of 
such  parents.18  In  case  a  homestead  is  conveyed  to  the 
son  of  the  owners,  subject  to  the  right  of  either  of  them 
to  occupy  it  during  life,  and  the  husband,  surviving,  re- 
sided until  his  death  with  his  son,  who  did  not  reside  on 
the  homestead,  the  son  did  not  acquire  the  property  as  a 
homestead.19 

§  1C57.  Of  the  extent  of  the  homestead.  — The 
homestead  must  embrace  the  house  used  as  a  home  by 
the  owner  thereof,  and  if  he  has  two  or  more  houses  thus 
used  by  him  at  different  times  and  places,  he  may  select 
which  he  will  retain  as  a  homestead.20  An  actual  re- 
moval from  the  homestead  with  no  intention  of  return- 
ing will  be  a  waiver  or  forfeiture  of  the  homestead  right 
as  against  purchasers  or  creditors,  though  no  new  home- 
stead be  gained.21  If,  however,  such  removal  is  but  tem- 
porary and  third  persons  have  not  been  led  to  believe 
that  the  property  was  not  a  homestead,  by  the  owner  out 
of  possession,  and  to  act  on  such  belief  by  altering  their 
condition,  the  homestead  right  will  still  subsist.22  In 

i*Foley  v.   Cooper,   43-376;    see  i»  Reifenstahl    v.    Osborne,    66- 

McCleary  v.  Ellis,  54-311.  567. 

ie  Croup  v.  Morton,  49-16,  53-599;  20  Code,  Sec.  2977;  Fyffe  v.  Beers 

Hamill  v.  Henry,  69-752;  see  First  18-4. 

Nat'l  Bk.  v.  Hollinsworth,  78-575.  21  Fyffe  v.  Beers,  18-4. 

IT  Hamill  v.  Henry,  69-752.  22  Davis  v.    Kelley,   14-523;    Des 

is  Collins  v.  Chantland,  48-241.  Moines   v.    Sargent,    18-90;    Brad- 

shaw  v.  Hurst,  57-745. 


2G8  THE    HOMESTEAD.  [§  1058. 

these  cases,  each  one  must  to  a  great  extent  be  decided  on 
its  own  peculiar  facts.23  Stronger  and  clearer  proof  of 
the  abandonment  of  a  homestead  is  required,  where  the 
lien  sought  to  be  enforced  against  it  arose  during  the 
actual  occupancy,  than  where  it  arose  when  the  owner 
was  not  in  actual  possession.24  Length  of  absence  from 
the  homestead  is  not  conclusive  evidence  of  abandon- 
ment, but  is  an  important  fact  to  be  taken  into  consider- 
ation. For  a  discussion  of  the  facts  in  particular  cases 
with  reference  to  abandonment  the  reader  is  referred  to 
cases  under  the  section  treating  of  abandonment.  A 
homestead  law  in  force  at  the  date  of  a  contract  becomes 
a  part  of  it,  and  a  repeal  of  the  law  does  not  impair  the 
right  of  exemption.25  In  order  to  constitute  a  home- 
stead there  must  be  a  house  situated  on  real  estate 
which  is  used  as  a  home.26  But  the  homestead  character 
will  not  be  lost  by  the  property  being  rented  to  a  ten- 
ant.27 Sometimes  portions  of  a  building  used  as  a  store 
are  exempt  from  execution,  while  other  portions  of  the 
same  building  are  not  exempt.28  And  it  is  held  that 
when  a  wife  owning  a  homestead  left  it  and  removed 
with  her  husband  to  another  State  for  a  temporary  pur- 
pose, the  intention  to  return  will  be  presumed  to  con- 
tinue until  the  contrary  is  shown.2*  Two  tracts  of  laud 
belonging,  the  one  to  the  husband  and  the  other  to  the 
wife,  may  together  constitute  the  homestead/'50  Aban- 
donment of  the  homestead  may  be  shown  without  proof 
of  the  acquisition  of  a  new  homestead.31 

§  1058.  Same— Of  several  lots.— The  homestead  may 
contain  one  or  more  contiguous  lots  or  tracts  of  land, 
with  the  buildings  thereon,  and  other  appurtenances, 

23Fyffe  v.  Beers,  18-4;  Dodds  v.  23  Rhodes  v.   McCormick,   4-368: 

Dodds,  26-311;    Stewart  v.  Brand,  McCormick  v.  Bishop,  28-233;    see 

23-477.  Wright  v.  Ditzler,  54-620:  Mayfield 

24  Davis  v.  Kelley,  14-523;   Dun-  v.    Maasden,    59-517;     Johnson    v. 

ton  v.  Woodbury,  24-74.  Moser,  66-536;  Smith  v    Quig°-ans 

'-;•-•  Bridgmen  v.  Wilcut,  4  G.  Gr.,  65-637. 

563:  Coriell  v.  Ham,  4  G.  Gr.,  455.  20  Bradshaw  v.  Hurst.  57-745 

26Windle  v.  Brandt,  55-221;   see  30  Lovell  v.  Shannon.  60-713. 

Neal  v.  Coe.  35-407.  si  Cotton  v.  Hamil,  58-594 

27  Rob  v.  McBride,  28-386. 


§  1059.]  THE    HOMESTEAD.  269 

subject  to  the  limitations  below  stated.  It  must  in  no 
case  embrace  different  lots  or  tracts,  unless  they  are 
contiguous,  or  unless  they  are  habitually  and  in  good 
faith  used  as  a  part  of  it.32 

If  within  a  city  or  town,  the  homestead  must  not  ex- 
ceed one-half  an  acre  in  extent,  otherwise  it  must  not 
embrace,  in  the  aggregate,  more  than  forty  acres;  but  if, 
when  thus  limited,  in  either  case,  its  value  is  less  than 
five  hundred  dollars,  it  may  be  enlarged  until  its  value 
reaches  that  amount.33  But  the  extent  of  a  homestead 
situated  in  a  town  will  not  be  limited  to  a  half  acre,  un- 
less the  territory  embracing  it  has  been  platted.34  There 
is  no  limit  to  the  value  of  the  building  used  as  a  home- 
stead, but  only  on  the  land.35 

When  a  husband  and  wife  are  occupying  as  a  home- 
stead more  land  than  the  law  exempts,  and  the  home- 
stead has  not  been  platted  as  required  by  statute,  a  mort- 
gage executed  by  the  husband  alone  on  any  of  the  land 
is  void;  but  a  judgment  rendered  on  a  debt  intended  to 
be  secured  may  be  enforced  against  the  excess  of  land  so 
occupied,  provided  the  homestead  is  marked  off.36  The 
value  of  the  homestead  does  not  affect  the  right  of  the 
owner  to  its  exemption.  It  is  a  right  conferred  by  stat- 
ute on  rich  and  poor  alike.  Nor  will  a  homestead  out- 
side of  a  town  plat  'be  affected  by  the  town  being  so  ex- 
tended as  to  include  it.37 

§  1059.  Same — What  it  embraces. — A  homestead 
may  embrace  leasehold  property  as  well  as  a  freehold, 
and  it  may  attach  to  land  in  possession  of  a  vendee  under 
a  contract  when  the  legal  title  is  in  the  vendor,38  but  it 

32  Code,   Sec.   2977;    Reynolds  v.  Frost    v.    Rainbow,    85-289;    First 
Hull,  36-394;    Henderson  v.  Rain-  Nat'l  Bk.  v.  Hollinsworth,  78-575. 
bow,    76-320;    First    Nat'l    Bk.    v.  34  McDaniel  v.  Mace,  47-509;  Fin- 
Hollingsworth,     78-575;     Mann    v.  ley  v.  Detrick,    12-516;    Truax    v. 
Corrington,  61  N.  W.,  409;  Johnson  Pool,  46-256;    Beyer  v.  Thoeming, 
v.  Moser,  72-523;   McClure  v.  BraT  81-517. 

niff,  75-38;  Arnold  v.  Gotshall,  71-         «s  Rhodes  v.  McCormick,  4-368. 
572;  Cass  County  Bk.  v.  Weber,  83-         **  Goodrich    v.    Brown,    63-247; 

6;     Woolcut    v.     Lerdell,     78-668;  see  Helfenstein  v.  Cave,  3-287,  and 

Groneweg  v.  Beck,  62  N.  W.,  31.  6-374. 

33  Code,    Sec.     2978;     Thorn     v.          37  Finley  v.  Deitrick,  12-516. 
Thorn,  14-49;   Yates  v.  McKibben,          »» Pelan    v.    De    Bevard,     13-53; 
66-357;    Boot  v.  Brewster,   75-631;  Lessell  v.  Goodman,  66  N.  W.,  917. 


270  THE    HOMESTEAD.  [§  10GO. 

must  not  embrace  more  than  one  dwelling  house,  or  any 
other  building,  except  such  as  are  properly  appurtenant 
to  the  homestead  as  such;  but  a  shop  or  other  building 
situated  thereon  and  used  and  occupied  by  the  owner  in 
the  prosecution  of  his  own  ordinary  business,  and  not 
exceeding  three  hundred  dollars  in  value,  may  be 
deemed  appurtenant  to  such  homestead.39  But  it  will 
not  embrace  buildings  appurtenant  and  which  are  leased 
to  others.40  A  barn  or  stable  used  for  ordinary  purposes 
in  connection  with  a  homestead  is  exempt  without  re- 
gard to  its  value,  as  property  appurtenant  to  the  home- 
stead.41 But  a  building  or  a  portion  of  a  building  used 
as  a  place  for  the  illegal  sale  of  intoxicating  liquors  will 
not  be  exempt  as  a  part  of  the  homestead.42  And  rooms 
used  for  business  purposes  may  lose  their  homestead 
character,  except  as  they  are  appurtenant  to  the  home- 
stead.43 

§  1060.  Of  selecting  and  platting  the  homestead. 
—The  owner,  husband  or  wife,  may  select  the  home- 
stead and  cause  it  to  be  platted,  as  hereafter  set  forth, 
but  a  failure  to  do  so  does  not  leave  the  homestead  lia- 
ble, nor  prevent  the  owner  from  claiming  more  than 
forty  acres,  and  a  selection  by  the  owner  will  control.44 
The  property  occupied  by  the  parties  as  a  homestead 
will  be  regarded  and  treated  as  such'  where  the  husband 
and  wife  fail  to  select  their  homestead.45  The  plat  must 
be  recorded  to  constitute  a  valid  selection  of  a  home- 
stead under  the  statue.46  Where  an  officer  holds  an  exe- 
cution against  a  homestead  and  6ther  lands,  and  the  oc- 
cupants fail  to  select  and  plat  a  homestead,  it  is  the  duty 
of  the  officer  to  do  so,  and  it  seems  a  failure  to  do  so  and 
a  sale  en  gross  of  the  property  will  be  void.47  And  he 

39  Code,  Sec.  2978;  Rhodes  v.  Me-  45  Alley  v.  Bay,  9-509. 

Cormick,    4-368;     Smith    v.    Quig-  *o  White  v.  Rowley,  46-680;  Low- 

gans,  65-637.  ell  v.  Shannon,  60-713;    Martin  v. 

4oKurzv.  Brusch,  13-371.  Knapp,  57-336;  Owen  v.  Hart,  62- 

41  Wright  v.  Ditzler,  54-620.  620. 

42  Arnold  v.  Gotshall,  71-572.  4-  Code,  Sec.  2979;  Visek  v.  Doo- 

43  McClure  v.  Braniff,  75-38.  little,  69-602;    Linscott  v.  Lamart, 

44  Code,  Sec.  2979;  Nye  v.  Walli-  46-312;     Owens    v.    Hart,    62-620; 
ker,  46-306;  Linscott  v.  Lamart,  46-  White  v.  Rowley,  46-680;  Lovell  v. 
312;  Green  v.  Farrar,  53-426.  Shannon,  60-713. 


§  1000.]  THE   HOMESTEAD.  271 

must  first  exhaust  other  property,  if  there  be  any.  But 
it  is  held  that  the  requirement  of  the  statute,  code  of 
1873,  section  1998,  that  the  officer  must  select  and  plat  a 
homestead  in  case  the  parties  fail  so  to  do,  applies  to 
special  executions  as  well  as  to  a  general  execution,  and 
if  a  sale  is  made  without  platting  the  homestead  it  is 
voidable  only.48  The  old  statute  expressly  required  the 
officer,  in  certain  cases,  to  plat  the  homestead,  and  the 
above  decisions  were  made  under  that  law,  now  the 
statute  contains  no  such  provision,  but  in  lieu  thereof 
it  is  provided  that  upon  the  application  of  any  creditor 
of  the  owner  of  a  homestead,  or  of  any  other  interested 
person,  to  the  district  court,  such  court  must  hear  the 
cause  upon  the  proof  offered  and  fix  and  establish  the 
boundaries  of  the  homestead,  and  its  judgment  must  be 
filed  with  the  county  recorder  and  recorded  in  his 
office.49  In  an  execution  sale  of  the  interest  of  a  tenant 
in  common  it  is  not  proper  for  the  officer  to  set  off  any 
specific  portion  of  the  property  as  a  homestead.50  But 
where  a  tract  including  the  homestead  was  sold  in  a 
lump  after  being  first  offered  in  forties,  it  was  held  that 
no  prejudice  resulted  from  a  failure  of  the  sheriff  to 
mark  off  and  plat  the  homestead.51  The  homestead  must 
be  marked  off  by  fixed  and  visible  monuments,  and  in 
giving  a  description  thereof,  the  direction  and  distance 
of  the  starting  point  from  some  corner  of  the  dwelling 
house  must  be  stated;  the  description  and  plat  must 
then  be  filed  and  recorded  by  the  recorder  of  the  county 
in  a  book  to  be  called  a  "homestead  book,"  which  must 
be  provided  with  a  proper  index.52 

If  the  undivided  interest  of  a  tenant  in  common  be 
sold,  in  land  in  which  he  has  a  homestead  interest,  the 
officer  should  not  set  off  any  portion  as  hir  homestead.53 
The  selection  and  platting  of  the  homestead  may  be  in 
the  following  form: 

43  Newman   v.   Franklin,  69-244.         si  Brumbaugh    v.   Zollinger,   59- 
Martin  v.  Knapp,  57-366.  384. 

49  Code,  Sec.  2980.  52  Code,   Sec.   2979. 

BO  Farr  v.  Reilly,  58-399.  BS  Fair  v.  Reilly,  58-399. 


THE    HOMESTEAD.  [§ 

FORM  OF  SELECTING  AND  PLATTING  HOMESTEAD. 
I,  -  — ,  being  a  resident  of  -  -  county,  Iowa,  and  the  head  of 
a  family,  and  now  owning  and  residing  on  the  following  described 
real  estate  in  said  county  (here  describe  land),  do  hereby  select  and 
plat  as  my  homestead  the  following  portion  of  said  land,  viz. :  Begin- 
ning at  a  point  rods  due  west  of  the  northwest  corner  of  my 

dwelling  house,  on  the  above  described  land  and  at  the  (here  insert 

place  in  the  section)  thence  north rods,  thence  east rods, 

thence  south rods,  thence  west rods  to  the  place  of  be- 
ginning, as  will  more  fully  appear  in  the  plat  below,  wherein  the  points 
above  described  are  designated  by  fixed  and  visible  monuments,  and 
said  plat  is  made  a  part  hereof  (here  make  plat  showing  location  of 
dwelling  house  and  the  lines  and  distances  above  mentioned  and  show- 
ing monuments  set  at  points  mentioned  in  above  description). 

The  above  form  of  description  sufficiently  indicates 
what  is  necessary.  The  plat  must  be  filed  and  recorded. 

FORM  OF  NOTICE  TO  PLAT  HOMESTEAD. 

To  (names  of  owners): 

You,  and  each  of  you,  are  hereby  notified  that  by  virtue  of  an  ex- 
ecution directed  to  me  from  the  clerk  of  the  district  court  of  - 

county,  Iowa,  dated  the  day  of  ,  18 — ,  that  I  did  on  the 

-  day  of ,  18 — ,  levy  upon  the  following  described  property 

situated  in  county,  Iowa,  to  wit  (here  describe  the 'land  levied 

on),  and  I  will  offer  the  same  for  sale  at  the  court  house  in  -     — , 

Iowa,  on  the  —      —  day  of ,  18 — ,  and  you  are  requested  to  select, 

plat  and  record  a  homestead  from  the  above  described  real  estate  on 

or  before  the  day  of  -     —  18 — ,  and  in  case  you  refuse,  or 

neglect  so  to  do,  I  shall  have  said  homestead  selected  and  platted  as 
provided  by  law. 

Dated  at ,  Iowa,  the  day  of ,  18 — . 

,  sheriff  of  county,  Iowa. 

The  application  of  the  creditor  to  the  court  to  fix  and 
establish  the  boundaries  of  the  homestead  may  be  in  the 
following  form: 

FORM    OF    APPLICATION    OF    A    CREDITOR    TO    THE    DISTRICT 

COURT  TO  FIX  AND  ESTABLISH  THE  BOUNDARIES 

OF  THE  HOMESTEAD. 

In   the  matter   of   the  application   of  ^ 
a    judgment    creditor    of 


and     for     an     order     fixing     and    V 

establishing  the  boundaries  of  the  home-   I 
stead   in   the   land    of  and   .    J 

Your  petitioner  shows  to  the  court  that  the  defendants and 

are  the  fee  simple  owners  of  the  following  described  real  estate 


(here  describe  it),  situated  in  the  county  of ,  Iowa,  and  consisting 


§  10 JO.]  THE   HOMESTEAD.  273 

of acres.     That  they  are  entitled  to  have  a  homestead  set  apart 

therein.     That  your  petitioner  holds  a  judgment  against  said and 

—  which  is  in  full  force  and  unpaid,  and  which  will  be  a  lien  upon 
all  of  said  land  not  set  apart  as  a  homestead.  Petitioner  therefore  asks 
that  this  court  fix  and  establish  the  boundaries  of  said  homestead  in. 
said  land  and  that  due  notice  be  given  the  owners  of  said  land  of  the 

'time  fixed  for  the  hearing  of  this  application.  , 

Attorney  for  petitioners. 

This  form  can  readily  be  varied  in  case  the  petitioner 
has  such  other  interest  as  to  entitle  him  to  make  such  an 
application.  The  statute  does  not  expressly  provide  for 
a  notice  of  the  Hearing  of  an  application  to  the  court  to 
fix  and  establish  the  boundaries  of  a  homestead,  but 
such  a  notice  should  be  given  and  the  court  should  fix 
and  determine  the  time  of  notice. 

Such  notice  may  be  in  the  following  form: 

FORM  OF  NOTICE  TO  OWNERS  OF  THE  HEARING  OF  AN  APPLI- 
CATION BY  THE  DISTRICT  COURT  TO  FIX  AND  ESTAB- 
LISH THE  BOUNDARIES  OF  THE  HOMESTEAD. 

To  (names  of  owners). 

You,  and  each  of  you,  are  hereby  notified  that (a  judgment 

creditor  of  yours,  or  if  a  person  otherwise  interested  so  as  to  entitle 
him  to  make  such  application,  state  what  said  interest  is)  has  made  ap- 
plication to  the  district  court  of  -  —  county,  Iowa,  asking  said  court 
to  fix  and  establish  the  boundaries  of  your  homestead  in  the  (here  de- 
scribe the  land)  and  said  application  will  come  on  for  hearing  before 

said  court  at  the  court  house  in on  the day  of ,  18 — , 

at  —  —  o'clock  a.  m.,  at  which  time  and  place  you  can  offer  such  proof 
as  may  be  proper  touching  the  location  of  said  homestead. 

Dated  this day  of ,  18— 


Clerk  of  the  district  court  of  County,  Iowa. 

The  entry  of  judgment  fixing  and  establishing  the 
boundaries  of  said  homestead  may  be  in  the  following 
form : 

FORM   OF  ENTRY   OF   JUDGMENT  FIXING  AND   ESTABLISHING 
THE  BOUNDARIES  OF  A  HOMESTEAD. 


In  the  matter  of  the  application  of ,  -v 

a  judgment  creditor  of and I 

for  fixing  and  establishing  the  boundar-    V 

ies  of  a  homestead  in  the  land  of I 

and . 

And  now  to  wit,  on  this day  of 18 — ,  this  cause  came 

on  to  be  heard  before  the  court  on  the  application  of  —      —  a  creditor  of 
and for  the  court  to  fix  and  establish  the  boundaries  of  the 

Vol.  IT— 18 


274  THE    HOMESTEAD.  [§  1061. 

homestead  of  said and  in  the  following  described  real  es- 
tate (here  describe  the  whole  tract  out  of  which  the  homestead  is  to  be 
carved),  and  it  appearing  to  the  court  that  due  and  legal  notice  has  been 
served  of  the  hearing  of  said  application  as  directed  by  the  court  has 
been  served  upon  the  aforesaid  owners  of  said  land,  and  the  court  hav- 
ing heard  all  of  the  proofs  offered  by  all  of  the  parties,  and  being  fully 
advised  in  the  premises,  it  is  hereby  ordered  that  the  limits  of  the 
boundaries  of  said  homestead  are  fixed  and  established  as  follows:  (here 
insert  the  finding  of  the  court  which  must  accurately  describe  the 
homestead  as  provided  in  section  2979  of  the  code.)  This  entry  must  be 
filed  and  recorded  in  the  recorder's  office. 

It  being  perhaps  a  matter  of  doubt,  as  to  whether  un- 
der the  present  law  an  officer  must  plat  a  homestead  in 
any  case  before  proceeding  to  levy,  I  have  retained  the 
forms  applicable  to  such  cases  and  also  referred  to  the 
cases  touching  that  matter.54 

§  1061.  Of  changing  the  limits  of  the  homestead. 
—The  owner  may  from  time  to  time  change  the  limits 
of  his  homestead  by  changing  the  metes  and  bounds,  as 
well  as  the  record  of  the  plat  and  description,  or  may 
change  it  entirely  or  vacate  it,  but  such  changes  will  not 
prejudice  conveyances  or  liens  made  or  created  pre- 
viously thereto,  and  no  such  change  of  the  entire  home- 
stead made  without  the  concurrence  of  the  husband  or 
wife,  will  affect  the  rights  of  the  one  not  concurring  or 
those  of  the  children.55 

The  new  homestead  to  the  extent  in  value  of  the  old 
is  exempt  from  execution  in  all  cases  where  the  old  or 
former  homestead  would  have  been  exempt,  but  in  no 
other,  nor  in  any  greater  degree.56  A  change  of  home- 
stead by  a  judgment  debtor  from  one  parcel  of  laud  to 
another,  can  not  displace  or  affect  the  liens  of  judgments 
rendered  before  such  change.57  It  has  been  held  that 
when  a  judgment  debtor  changed  his  homestead  from 
premises  on  a  town  lot  to  a  tract  of  land  not  exceeding 
forty  acres,  and  of  no  greater  value  than  the  former,  that 

s^Bradshaw  v.  Renlck,  90-409;  Dewell,  35-170;  Marshall  v.  Ruri- 

Henderson  v.  Rainbow,  76-320;  ick,  28-487;  Sargent  v.  Chubbuck, 

Smith  v.  De  Kock,  81-535.  19-37;  Thompson  v.  Rogers,  51-333; 

55  Code,  Sec.  2981;  Pearson  v.  White  v.  Kinley,  92-598;  Atkinson 

Minturn,  18-36.  v.  Hancock,  67-452. 

ss  Code,    Sec.    2981;    Furman    v.  57  Elston  v.  Robinson,  21-531. 


§  1061.]  THE    HOMESTEAD.  275 

the  new  homestead  was  exempt,  the  lien  of  the  judgment 
thereon  being  transferred  to  the  old  homestead.03  Where 
there  is  an  absolute  abandonment  of  the  premises,  they 
become,  like  other  property,  subject  to  be  seized  and 
sold  under  execution.  If  the  homestead  is  purchased  in 
part  with  funds  derived  from  the  sale  of  a  former  one, 
and  partly  from  other  sources,  and  the  new  homestead 
does  not  exceed  in  value  the  old  one,  the  new  one  will  be 
exempt  from  debts  contracted  during  and  subsequent  to 
the  occupancy  of  the  old  one.59  And  a  reasonable  time 
will  be  allowed  in  which  to  purchase  the  new  home- 
stead.60 But  where  the  proceeds  of  an  Iowa  homestead 
are  invested  in  one  in  another  State,  and  it  is  afterward 
sold  and  the  proceeds  invested  in  a  third  homestead  in 
Iowa,  it  will  not  be  exempt  as  against  a  debt  contracted 
before  it  was  purchased,  as  the  homestead  fund  by  the 
investment  in  another  State  loses  its  distinctive  charac- 
ter.61 And  when  the  debtor  holding  a  homestead  ex- 
empt from  execution  for  his  debts  exchanges  the  same 
for  other  property  which  he  procured  to  be  conveyed  di- 
rectly to  his  wife,  such  property  did  not  become  subject 
to  the  payment  of  his  debts  and  the  conveyance  to  the 
wife  was  not  fraudulent.62  Section  2981  of  the  code  ap- 
plied.63 Money  arising  from  the  sale  of  a  homestead  is 
not  exempt  from  garnishment,  unless  the  sale  was  in 
pursuance  of  a  design  to  purchase  another  homestead.64 
And  the  same  is  true  as  to  the  claims  of  -creditors  gen- 
erally on  the  fund  arising  from  the  sale  of  the  home- 
stead.65 If,  however,  the  proceeds  of  a  homestead  are, 
with  the  knowledge  and  consent  of  the  wife,  invested  in 
the  husband's  business,  he  can  not  thereafter  procure  a 
new  homestead  which  will  be  exempt  from  debts  al- 
ready contracted  in  such  business.66 

ss  Furman  v.  Dewell,  35-170;  see  si  Ro.erers  v.  Raisor,  60-355;  Dai- 
Pearson  v.  Minturn,  18-36.  ton  v.  Webb,  83-478. 

s»  Benham  v.  Chamberlin, 39-358;  «2  Jones  v.  Brandt,  59-332. 

Lay  v.  Templeton,  59-684.  63  Atkinson  v.  Hancock.  67-452. 

«o  Benham    v.    Chamberlin,    39-  '    64  Huskins  v.  Hanlon.  72-37. 

358;   State  v.  Geddis,  44-537;   Cow-  «»  Sohuttloffel   v.   Collins,   67   N. 

gell  v.  Warrington,  66-666:    Mann  W.,  397. 

v.  Corrington,  61  N.  W.,  409.  66  Peninsular  Stove  Co.  v.  Roark, 

63  N.  W.,  326. 


276  THE    HOMESTEAD.  [§§  1002,   1003. 

§  1062.  Of  pleading  and  practice. — It  is  incum- 
bent on  the  party  relying  on  the  fact  that  his  homestead 
was  procured  with  the  proceeds  of  a  previous  homestead 
and  consequently  exempt,  to  establish  such  fact.  The 
party  seeking  to  subject  it  to  his  claim  makes  a  prima 
facie  case  by  showing  that  his  claim  antedates  the  pur- 
chase of  the  homestead.67  And  a  prima  facie  case  of 
abandonment  is  made  when  the  plaintiff  avers  that  the 
party  has  abandoned  the  homestead  and  is  a  non-resi- 
dent, and  a  resident  of  another  State,  and  the  burden  is 
on  the  defendant  to  set  up  his  intention  to  return,  if  he 
has  such,  in  his  answer.68  The  homestead  exemption 
pertains  to  the  remedy,  and  is  regulated  by  the  law  of 
such  place.69  When  the  surrender  of  the  homestead  is 
voluntary,  the  burden  is  on  the  one  claiming  the  home- 
stead to  show  his  intention  to  return.70  The  admission 
of  evidence  regarding  surrendering  the  homestead  and 
its  effect  in  a  contest  between  creditors  discussed.71 

§  1063.  Of  dispute  as  to  what  constitutes  the 
homestead  —  How  determined. — In  case  of  a  disagree- 
ment between  the  owner  and  any  person  adversely  in- 
terested as  to  whether  any  lands  or  buildings  are  prop- 
erly a  part  of  the  homestead,  the  sheriff  having  the  exe- 
cution must,  at  the  request  of  either  party,  summon  nine 
disinterested  persons,  having  the  qualifications  of  ju- 
rors, and  the  parties,  commencing  with  the  owner  of 
the  homestead,  must  in  turn  strike  off  one  person  each 
until  only  three  of  the  nine  remain.  Should  either 
party  fail  to  do  so,  the  sheriff  may  act  for  him. 

These  three  must  then  proceed  as  referees  to  examine 
and  ascertain  all  the  facts  of  the  case,  and  must  report 
the  same,  with  their  opinion  thereon,  at  the  next  term 
of  the  court  from  which  the  execution  or  other  process 
may  have  issued.72  The  purpose  of  this  is  not  to  make 
a  selection  of  a  homestead,  but  to  enable  the  court  to  de- 

«7  First  Nat'l  Bk.  v.  Baker,   59-          ?o  Newman  v.  Franklin,  69-244. 
197;  Paine  v.  Means,  65-547.  fi  Van    Bogart    v.    Van    Bogart, 

BS  Orman  v.  Orman,  26-361.  46-359. 
ea  Helfenstein  v.  Cave,  3-287.  ?2  Code,  Sees.  2982-2983. 


§  1064.]  THE    HOMESTEAD.  277 

termine  whether  certain  land,  claimed  to  be  exempt,  is 
in  fact  so.73  And  the  section  contemplates  a  case  where 
homestead  rights  are  conceded  but  there  is  a  contro- 
versy as  to  where  the  line  is  to  be  drawn  between  what 
is  exempt  as  a  part  of  the  homestead  and  what  is  not.74 
§  1064.  Of  the  action  of  the  court,  etc. — The  court 
to  which  the  report  is  made  may,  at  its  discretion,  refer 
the  whole  or  any  part  of  the  matter  back  to  the  same, 
or  to  other  referees  selected  in  the  same  manner,  or  as 
the  parties  otherwise  agree,  giving  them  directions  as  to 
the  report  required  of  them.75  The  referees  should  take 
and  subscribe  an  oath,  before  proceeding  to  discharge 
their  duties,  which  may  be  in  the  following  form: 

FORM  OF  OATH  OF  REFEREES. 
Title.    ) 
Venue.  J 

State  of  Iowa,    ) 
County,  j 

We  (here  insert  names  of  referees),  residents  and  legal  voters  in 
said  county,  having  been  duly  appointed  referees,  as  provided  by  law  in 
such  cases,  do  solemnly  swear  (or  affirm)  that  we  will  well  and  faithfully 
examine  and  ascertain  all  the  facts  in  dispute  between  the  parties  in  the 
above  entitled  case,  in  regard  to  whether  any  of  the  land  or  buildings 
levied  on  (or  about  to  be  levied  on)  by  the  sheriff  under  an  execution  in 
said  cause,  are  properly  a  part  of  the  homestead  of  the  defendant  there- 
in, and  will  make  due  report  to  said  court  at  the  next  term  thereof. 

(It  must  be  signed  by  all  the  referees  and  sworn  to.) 

When  the  court  is  sufficiently  advised  in  the  case  it 
must  make  its  decision  and  may,  if  expedient,  direct  the 
homestead  to  be  marked  off  anew,  or  a  new  plat  and  de- 
scription to  be  made  and  recorded,  and  may  take  such 
further  steps  in  the  premises  as  in  its  discretion  may 
appear  expedient  to  attain  the  objects  of  the  statute;  it 
must  also  award  costs  as  nearly  as  may  be  in  accordance 
with  the  practice  observed  in  other  cases.76  The  extent 
or  appurtenances  of  the  homestead  as  thus  established, 
may  be  called  in  question  in  like  manner  whenever  a 

73  White  v.  Rowley,  46-680;  Me-         "  Code,  Sec.  2983. 
Crackin  v.  Weitzel,  70-723.  76  Code,  Sec.  2983. 

74  McCrackin  v.  Weitzel,  70-723. 


278  THE    HOMESTEAD.  [§  1065. 

change  in  value  or  circumstances  justify  such  new  pro- 
ceeding.77 These  provisions  only  apply  when  more  than 
forty  acres  is  claimed  as  a  homestead.78 

§  1065.  Of  the  occupation  of  the  homestead  by 
the  survivor,  etc. — On  the  death  of  either  husband  or 
wife,  the  survivor,  whether  the  owner  of  the  homestead 
or  not,  may  continue  to  possess  and  occupy  it  until  it  is 
otherwise  disposed  of  according  to  law.79  But,  as  has 
been  seen,  this  right  in  the  widow  is  that  of  occupancy 
alone,  the  title  vesting  in  the  heirs.80  The  right  of  occu- 
pancy carries  with  it  the  right  to  control  or  dispose  of  the 
rents  and  profits.81 

Nor  does  the  marriage  of  a  wife  with  a  second  hus- 
band deprive  her  of  the  right  conferred,  of  occupancy 
and  disposing  of  the  rents  and  profits,  or  entitle  the  heirs 
at  law  of  the  first  husband  to  partition.82  But  she  can 
not,  in  case  of  such  second  marriage,  when  the  title  was 
in  the  deceased  husband,  abandon,  sell,  mortgage  or 
convey  the  homestead;  and  if  she  does,  the  heirs  of  the 
deceased  are  entitled  to  a  partition  of  it.83  The  surviv- 
ing husband  or  wife  must  elect  between  the  retaining 
of  the  homestead  and  of  dower,  and  the  survivor  can  not 
have  both.84  Section  applied.85  A  judgment  against  a 
surviving  husband  is  not  a  lien  on  his  homestead  rights 
in  the  real  property  of  his  deceased  wife,  unless  he  has 
abandoned  the  same,  nor  can  he  create  any  valid  lien 
thereon  by  mortgage.86  Damages  may  be  allowed  the 
survivor  in  possession  of  the  homestead  for  an  injury 
done  to  her  homestead  right.87  The  wife's  interest  in 
the  homestead  property  is  present  fixed  and  substantial, 

it  Code,  Sec.  2984.  s*  Stevens    v.     Stevens,     50-491; 

™  Green  v.  Farrer,  53-426.  Whitehead  v.  Conklin,  48-478;  But- 

79  Code,    Sec.    2985;    Bournes    v.  terfield  v.  Wicks,  44-310. 

Keas,  21-257;  Orman  v.  Orman,  26-  ss  Burdick  v.  Kent,  52-583;  Brad- 

361;  Nicholas  v.  Purczell,  21-265.  shaw  v.  Hurst,  57-745;  Mahaffy  v. 

so  Johnson     v.     Gaylor,     41-362;  Mahaffy,    63-64;    Darrah    v.    Gun- 
Stevens  v.  Stevens,  50-491.  ningham,  72-123. 

si  Floyd  v.  Moser,  1-512.  86  Smith    v.    Eaton,    50-488;    see 

82  Nicholas    v.    Purczell,    21-265;  Butterfield  v.  Wicks,  44-310. 

Bournes  v.  Keas,  21-257;  Dodds  v.  »*  Cain  v.  C.,  R.  I.  &  P.  R.  Co., 

Dodds,  26-311.  54-255. 

ss  Size  v.  Size,  24-580;   see  But- 
terfield v.  Wicks,  44-310. 


§  1066.]  THE    HOMESTEAD.  279 

and  generally  not  affected  by  any  omission,  default  or 
neglect  of  the  husband,  and  within  the  meaning  of  a 
former  statute  it  is  real  property.88 

§  1066.  Of  the  election  to  hold  the  homestead 
in  lieu  of  dower.  —  The  survivor  cannot  have  both 
dower  and  homestead. 

It  is  held  that  the  survivor  may  have  a  reasonable 
time  in  which  to  make  an  election  whether  to  retain  the 
homestead  or  to  take  the  distributive  share,  and  during 
said  time  may  occupy  and  possess  the  homestead  and 
receive  the  rents  and  profits  thereof.89  What  acts  will 
be  treated  as  sufficient  to  show  an  election  must  depend 
upon  the  facts  in  each  case. 

It  is  said  that  occupancy  of  the  realty  as  a  homestead 
will  be  considered  as  an  election  to  hold  it  as  such.90 

An  occupancy  of  the  homestead  for  ten  years  without 
making  any  claim  to  have  dower  admeasured  is  regarded 
as  an  election  to  take  the  homestead.91  So  continued  oc- 
cupancy as  a  survivor  will  be  deemed  an  election,92  at 
least  until  the  distributive  share  of  such  survivor  is  set 
apart.93 

But  the  survivor  cannot  be  compelled  to  make  an  elec- 
tion until  the  question  of  the  indebtedness  of  the  estate 
is  determined.94  Nor  will  the  fact  of  occupancy  alone 
defeat  the  survivor's  right  to  a  distributive  share  as  un- 
less the  homestead  is  disposed  of  the  survivor  may  con- 
tinue to  occupy  it.95 

Where  under  the  provisions  of  a  will  the  widow  is  en- 
titled to  a  life  estate  which  may  include  the  homestead, 
occupation  of  it  will  not  be  treated  as  an  election  to  take 
it  in  lieu  of  dower,96  and  the  same  is  true  when  the  oc- 
cupancy is  in  accordance  with  the  provisions  of  a  de- 
vise.97 

ss  Adams  v.  Beale,  19-61;   Chase  93  McDonald    v.    McDonald,    76- 

v.  Abbott,  20-154;    Eli  v.  Gridley,  137;    Schlarb   v.   Holderbaum,   80- 

27-376.  394. 

ss  Cunningham    v.    Gamble,    57-  9*  Thomas  v.  Thomas,  73-657. 

46;   Egbert  v.  Egbert,  85-525.  95  Whited  v.  Pearson,  87-513. 

»o  Butterfleld  v.  Wicks,  44-310.  os  Hunter  v.   Hunter,  64  N.  W., 

si  Conn  v.  Conn,  58-747.  656. 

92  Holbrook     v.     Perry.     66-286;  »?  In  re  Franke's  Estate,   66  N. 

Stephens  v.  Hay,  66  N.  W.,  1048.  W.,  918;  Blair  v.  Wilson,  57-177. 


280  THE    HOMESTEAD.  [§  10G7. 

Reference  is  had  to  the  following  cases  to  determine 
as  to  what  acts  will  be  held  to  constitute  an  election.98 

The  homestead  right  is  not  extinguished  by  any  act 
short  of  a  final  order  setting  off  the  distributive  share." 

The  survivor  electing  to  retain  the  homestead  relin- 
quishes his  distributive  share,  but  such  relinqtiishment 
applies  only  to  the  one-third  in  case  there  are  children  or 
other  descendants  entitled  to  inherit  and  not  to  the  ad- 
ditional portion  which  the  survivor  may  be  entitled  to 
as  an  heir  at  law,  when  there  are  no  children.1  If  a 
widow  is  entitled  as  an  heir  at  law  to  one-half  of  her 
husband's  property,  the  other  heirs  cannot,  in  the  par- 
tition of  the  realty,  insist  that  she  include  the  homestead 
in  that  share.2 

If  the  widow's  share  is  set  apart  to  her  she  will  hold 
it  free  from  the  lien  of  a  judgment  which  is  not  prior  to 
the  original  homestead  right.3  Where  the  widow  elects 
to  occupy  the  homestead  and  acquires  by  inheritance 
from  an  heir  an  undivided  share  of  the  reversion,  such 
share  of  the  reversion  is  subject  to  execution  for  her 
debts.4 

§  1067.  Of  the  disposal  of  the  homestead. —The 
partition  or  setting  off  the  distributive  share  of  a  survi- 
vor in  the  real  estate  of  the  deceased  is  such  a  disposal  of 
the  homestead  as  is  contemplated  by  section  2985  of  the 
code,  but  the  survivor  may  elect  to  retain  the  homestead 
for  life  in  lieu  of  such  share  in  the  real  estate  of  the  de- 
ceased. If  there  be  no  survivor,  the  homestead  descends 
to  the  issue  of  either  the  husband  or  wife,  whichever  may 
have  held  the  legal  title,  according  to  the  rules  of  de- 
scent, unless  otherwise  directed  by  will,  and  it  will  be 
held  by  such  issue  exempt  from  any  antecedent  debts  of 
their  parents,  or  their  own,  except  those  of  the  owner 
thereof  contracted  prior  to  its  acquisition.5 

as  Stevens    v.     Stevens,     50-491;  3  Briggs  v.  Briggs,  45-318;  Knox 

Wilcox  v.  Wilcox,  89-388;  Zwick  v.  v.  Hanlon,  48-252. 

Johns,  89-550.  *  Strong  v.  Garrett,  90-100. 

99  Hornbeck  v.  Brown,  91-316.  s  Code,    Sec.   2985;    Size  v.   Size, 

1  Smith  v.  Zuckmeyer,  53-14.  24-580;    Dodds    v.    Dodds,    26-311; 

2  Nicholas  v.  Purczell,  21-265.  Lorieux  v.  Keller,  5-196;   Parsons 


§§  1068,  1069.]  THE    HOMESTEAD.  281 

When  the  wife  died  without  issue,  seized  of  a  home- 
stead, which  the  husband  elected  to  retain,  and  after- 
ward abandoned  the  homestead,  he  was  held  entitled  to 
one-sixth  of  the  estate  as  heir  at  law.6  The  distributive 
share  of  a  widow  in  lands  owned  by  her  husband,  aside 
from  the  homestead,  should  bear  its  proportionate  share 
of  a  mortgage  indebtedness  thereon  made  by  her  hus- 
band, and  in  which  she  joins.7  The  homestead  is  not 
liable  in  the  hands  of  the  survivor,  or  heirs,  for  funeral 
expenses,  or  expenses  of  the  last  sickness  of  the  deceased 
owner.8 

§1068.  Of  sale  or  devise  of  homestead. — If  there 
be  no  survivor  or  issue,  the  homestead  may  be  sold  on 
execution  for  the  payment  of  any  debts  to  which  it  might 
at  that  time  be  subjected,  if  it  had  never  been  held  as  a 
homestead.9  And  subject  to  the  rights  of  the  surviving 
husband  or  wife,  the  homestead  may  be  devised  as  other 
real  estate  of  the  testator.10 

§  1069.  Of  the  abandonment  of  the  homestead.— 
The  question  of  abandonment  hinges  largely  on  the  in- 
tention of  the  parties,  and  this  must  be  gathered  from 
the  facts  in  each  case. 

The  following  acts  have  been  held  not  to  amount  to 
an  abandonment:  A  temporary  removal  or  absence 
when  an  intention  to  return  exists.11  Length  of  time  of 
absence  while  not  conclusive  as  to  an  abandonment  may 
be  an  important  fact  in  determining  the  intention  to 
return,  especially  in  the  absence  of  other  acts  indicating 
the  intention.12 

Stronger  proof  of  abandonment  is  required  when  the 

v.  Livingston,  11-104;  Bournes  v.  Orman,  26-361;  Davis  v.  Kelley, 

Keas,  21-257;  Colton  v.  Wood,  25-  14-523;  Morris  v.  Sargent,  18-90; 

43.  Bradshaw  v.  Hurst,  57-745;  Shir- 

s  Smith  v.  Zuckmeyer,  53-14;  see  land  v.  Union  Nat'l  Bk.,  65-96; 

Butt*!rfield  v.  Wicks,  44-310;  Meyer  Griffin  v.  Sheley,  55-513;  Zwick  v. 

v.  Meyer,  23-359;  Burdick  v.  Kent  Johns,  89-550;  Repen  v.  Davis,  72- 

52-583.  548;  Boot  v.  Brewster,  75-631;  Ben- 

7  Trowbridge  v.  Sypher,  55-352.  bow    v.    Boyer,    89-494;    Ayres    v. 

s  Knox  v.  Hanlon,  48-252.  Grill,  85-720;  Jones  v.  Blumenstein, 

a  Code,  Sec.  2986.  77-361. 

10  Code,  Sec.  2987.  12  Dunton   v.   Woodbury,    24-74; 

11  Fyffe  v.  Beers,  18-4;  Orman  v.  Newman  v.  Franklin,  69-244. 


282  THE   HOMESTEAD.  [§  1069. 

lien  is  claimed  to  have  attached  during  actual  occu- 
pancy, than  when  it  arises  when  the  owner  of  the  prem- 
ises was  not  in  the  actual  possession  of  them.13  A  home- 
stead may  not  be  abandoned,  though  the  head  of  the 
family  goes  to  another  State  and  acquires  property  there 
and  intends  to  remove  his  family  there  if  the  family  de- 
sire to  retain  the  homestead  as  such.14 

A  conveyance  of  the  homestead  by  the  husband  to  the- 
wife  will  not  be  an  abandonment.15  Nor  is  a  conveyance 
of  both  to  a  third  person  in  trust  to  be  reconveyed  to  the 
wife.16 

But  it  might  be  otherwise  if  the  husband  conveyed  to 
a  third  party,  who  thereafter  conveyed  to  the  wife,  the 
occupancy  meantime  remaining  unchanged.17  A  con- 
veyance in  the  form  of  a  deed  which  is  in  fact  a  mortgage 
securing  money  borrowed  of  the  grantee  will  not  affect 
the  homestead.18 

In  the  following  cases  the  facts  were  held  to  show  an 
abandonment.  Where  the  wife,  holding  under  a  volun- 
tary conveyance  from  her  husband,  which  was  void  for 
fraud  as  to  creditors,  dies,  and  the  husband  and  children 
abandon  the  homestead.19  Where  the  owner  leaves  the 
premises  and  acquires  a  new  home.20  Where  he  removes 
with  no  intention  of  returning.21  Absence  for  two  years 
without  manifesting  any  intention  to  return  and  mean- 
time offering  to  sell  or  to  trade  the  property.22  Where 
one  left  the  homestead  and  moved  to  a  town  to  pursue 
his  profession,  with  the  intention  of  staying  perma- 
nently if  he  could  make  a  living.23  Where  the  husband 
abandoned  the  homestead,  became  a  citizen  of  another 
state  and  remained  there  for  years  with  his  wife  and 
family  having  no  definite  time  or  plan  of  return.24  Where 
the  owner  of  the  homestead  removed  permanently  to  his 

is  Davis  v.  Kelley,  14-523.  i»  Gardner  v.  Baker,  25-343. 
i-i  Savings   Bk.  v.   Kennedy,  58-          20  Davis  v.  Kelley,  14-523. 

454;  Lunt  v.  Neeley,  67-97.  21  Newman  v.  Franklin,  69-244. 

is  Green  v.  Farrar,  53-426.  22  Dunton  v.  Woodbury,  24-74. 

is  Hugunin  v.  Dewey,  20-368.  23  Kimball  v.  Wilson,  59-638. 

IT  Jones  v.  Currier,  65-533.  2*  Perry  v.  Dillrance,  86-424. 
is  McClure  v.  Braniff,  75-38. 


§  10G9.  ]  THE    HOMESTEAD.  283 

new  place  of  residence.25  Where  one  removed  from  his 
farm  to  a  city  and  registered  and  voted  in  the  city  after 
he  had  made  sale  of  the  farm.26  When  the  owner  di- 
rected the  sheriff  to  sell  the  homestead  which  he  had 
left  three  years  before  and  began  his  action  to  set  aside 
the  sheriff's  deed  five  years  after  it  had  issued.27  Where 
after  a  sale  of  a  homestead  under  a  foreclosure  of  a  mort- 
gage, in  which  the  wife  had  joined,  she  joined  her  hus- 
band in  leasing  the  premises.28  For  other  cases  relating 
to  this  subject.29 

25  Cotton  v.  Hamil,  58-594.  Brandt,  55-221;  Van  Bogart  v.  Van 

26  Conway  v.  Nichols,  71  N.  W.,      Bogart,  46-359;  Parsons  v.  Cooley, 
183.  60-268;  Sibley  v.  Lawrence,  46-563; 

27  Wilson  v.  Daniels,  79-132.  Ditson  v.  Ditson,  85-276;  Woods  v. 
2s  Bradshaw  v.  Remick,  90-409.         Davis,   34-264;    Stewart   v.' Brand, 
29  Stinson  v.  Richardson,  44-373;      23-477;   Leonard  v.  Ingraham,  58- 

Painter  v.  Steffen,  87-171;   Givans      406;  Baker  v.  Jamison  73-698. 
v.     Dewey.     47-414;     Windle     v. 


.   CHAPTER  LXVI. 

OP  INJUNCTIONS. 

Sec.  1070.    Object  and  purpose  of  injunctions. 

1071.  Granted  to  abate  nuisances  relating  to  manufacture  and  sale 

of  intoxicating  liquors. 

1072.  How  actions  to  enjoin  nuisances  relating  to  manufacture  and 

sale  of  intoxicating  liquors  should  be  brought. 

1073.  Of  the  application  in  such  actions. 

1074.  When  an  injunction  will  be  granted  generally. 

1075.  When  an  injunction  will  be  refused. 

1076.  Of  parties  to  the  action. 

1077.  How  and  at  what  time  it  may  be  granted. 

1078.  Same. 

1079.  Rules  governing  the  granting  of  injunctions — Powers  of  the 

court. 

1080.  By  whom  and  when  a  temporary  injunction  may  be  granted. 

1081.  When  not  granted  without  notice. 

1082.  Form  and  requisites  of  the  petition. 

1083.  Of  the  allowance  of  the  writ. 

1084.  Of  Ijpie  bond. 

1085.  Of  actions  on  injunction  bonds. 

1086.  Issuance  of  the  writ. 

1087.  Of  vacation  and  modification  of  the  injunction, 

1088.  Of  dissolution  of  the  injunction. 

1089.  Relating  to  pleading  and  practice. 

1090.  Violation  of  injunction — How  punished. 

1091.  Of  amendments. 

Section  1070.  Object  and  purpose  of  injunctions. 
—A  writ  of  injunction  is  denned  as  a  "judicial  process,  op- 
erating in  personam,  and  requiring  the  person  to  whom 
it  is  directed  to  do,  or  to  refrain  from  doing,  a  particular 
thing.  In  its  broadest  sense  the  process  is  restorative 
as  well  as  preventive,  and  may  be  used  both  in  the  enforce- 
ment of  rights  and  in  the  prevention  of  wrongs."1 

i  High    on    Injunctions,    Sec.    1;       Cooke      (Tenn.),     87;      2     Story's 
McDohogh    v.    Galloway,    7    Rob.      Equity,  Sec.  861. 
(La.)    442;    Childress    v.    Perkins. 

284 


§§1071,  1072.]  INJUNCTIONS.  285 

§  1071.  Granted  to  abate  nuisances  relating  to 
the  manufacture  and  sale  of  intoxicating  liquors.— 
The  manufacture  of  any  intoxicating  liquors,  except  as 
permitted  by  law,  is  a  nuisance,  and  may  be  enjoined  and 
abated  by  suit  in  equity.2  So  if  any  person  not  holding 
a  permit  to  sell  intoxicating  liquors,  by  himself,  his  clerk, 
servant  or  agent,  shall,  directly  or  indirectly,  sell  or  give 
to  any  person  such  liquors,  the  building  or  erection,  or  the 
ground  on  or  upon  which  such  sale,  or  keeping  with  intent 
to  sell,  use,  or  give  away  intoxicating  liquors,  is  carried 
on,  continued  or  exists,  and  the  furniture,  fixtures,  ves- 
sels and  contents  are  declared  to  be  a  nuisance,  and  may 
be  abated  by  an  action  in  equity.3  And  in  case  of  the 
mixing  of  any  intoxicating  liquors  with  beer  or  wine  or 
cider,  and  the  selling  of  the  same  by  any  party,  or  keep- 
ing them  for  sale  as  a  beverage,  the  buildings  and  grounds 
where  such  liquor  is  sold,  or  kept  for  sale,  and  the  furni- 
ture, fixtures  and  vessels,  and  the  contents,  are  a  nuisance 
and  may  be  abated  by  an  action  in  equity.4 

The  keeping  of  any  intoxicating  liquors  with  intent  to 
sell  the  same,  or  permit  the  same  to  be  sold,  in  violation  of 
law,  the  buildings  and  grounds  wherein  such  liquors  are 
sold  or  kept  for  sale,  and  the  furniture,  fixtures  and  ves- 
sels, and  their  contents,  is  a  nuisance,  and  may  be  abated 
by  an  action  in  equity,5  and  a  violation  of  the  law  per- 
mitting pharmacists  to  sell  intoxicating  liquors  is  a 
nuisance  and  when  it  exists  may  be  abated  by  an  action 
in  equity.6 

§  1072.  How  actions  to  enjoin  nuisances  relating 
to  manufacture  and  sale  of  intoxicating  liquors  should 
be  brought. — Such  actions  may  be  brought  in  the  name 
of  the  State  of  Iowa,  by  the  county  attorney,  and  it  is 
made  his  duty,  when  such  nuisance  exists,  to  institute  and 
prosecute  an  action  for  its  abatement,  after  he  shall  have 

2  Code,  Sees.  2382,  2405.  *  Code,  Sees.  2382,  2405. 

s  Code,  Sec.  2405;   State  v.  Way-          5  Code,  Sees.  2382,  2405. 
nick,  45-516;  Gray  v.  Steine,  69-124.          e  Code,  Sec.  2386. 
Lemen    v.    Wagner,    68-660;    Rad- 
ford  v.  Thornell,  81-709. 


286  IX  JUNCTIONS.  [§  10  to 

received  reasonable  notice  thereof.  And  any  citizen  may 
institute  and  prosecute  such  action,  in  any  case,  in  his 
own  name.7 

§  1073.  Of  the  application  in  such  actions. — If  the 
application  for  an  injunction  in  such  cases  be  made  to  the 
judge  or  court  in  vacation,  or  the  court  in  term  time, 
three  days'  notice  must  be  given  of  the  hearing,  and,  at 
the  election  of  the  applicant,  the  existence  of  the 
nuisance  may  be  established  by  affidavits,  depositions 
or  oral  testimony,  unless  the  court  or  judge  has  other- 
wise ordered.8 

Notice  of  the  application  may  be  in  the  following  form: 

NOTICE  OF  AN  APPLICATION  FOR  AN  INJUNCTION  TO  ABATE 

NUISANCE. 
Title,     ) 

Venue,    j 
ipo .;  defendant,  or  to  (names  of  his  attorneys,  if  known) : 

You  are  hereby  notified  that  the  plaintiff  will,  on  the  —      —  day  of 

(  ig — ,  at o'clock  a.  m.,  at Iowa,  make  application  to 

the  honorable ,  judge  of  the  district  court  of  the  —  —  judicial  dis- 
trict of  Iowa,  at  chambers,  on  the  petition  and  affidavits,  copies  of  which 
are  attached  hereto,  for  an  order  for  a  temporary  injunction,  enjoining 
and  restraining  you,  by  yourself,  agents  and  servants,  from  in  any  man- 
ner selling,  or  offering  for  sale,  any  intoxicating  liquors  in  your  place, 
in  (city  or  town),  Iowa,  situated  on  lot  number  one,  in  block  number 
one,  in  (city  or  town),  in  violation  of  law,  and  from  keeping  the  same 
with  intent  to  sell,  use  or  give  away,  in  violation  of  law,  and  you  can 
appear  at  said  time,  and  resist  said  application,  if  you  desire. 

Dated, ,  the ,  18—. 

,  county  attorney,  in  and  for county,  Iowa. 

Code,  Section  2405,  allowing  an  injunction  to  issue  to 
restrain  a  nuisance  relating  to  illegal  sale  of  intoxicating 
liquors,  is  not  unconstitutional  as  depriving  a  defendant 
of  a  right  to  trial  by  jury,  nor  as  an  attempt  to  enforce 
the  criminal  law  by  civil  action,  nor  does  it  become  ex  post 

T  Code,  Sees.  2406,  2405;  Littleton  Green,  73-688;  Craig  v.  Hasselman, 

v.  Fritz,  65-488;  Pontius  v.  Wine-  74-538;     Judge     v.     Kell,     74-486; 

brenner,  64-591;  Applegate  v.Wine-  Geyer  v.  Douglass,  85-93;  Maloney 

brenner,    66-67;     Pontius   v.    Bow-  v.  Traverse,  87-306;  Wood  v.  Baer, 

man,  66-88;    Shermerhorn  v.  Web-  91-475;   McQuade  v.  Collins,  61  N. 

ber,  67-278;  Martin  v.  Blattner,  68-  W.,  213. 
286;    Fuller  v.   McDonald,   75-220;          s  Code,  Sec.  2405. 
Littleton  v.  Harris,  73-167;  Shear  v. 


§  1074.  ]  IXJUXCTIONS.  ,  287 

facto  in  its  operation.9  Nor  can  one  in  such  an  action 
claim  that  he  is  about  to  be  deprived  of  his  property  with- 
out compensation,  in  violation  of  the  constitution  of  the 
United  States,  unless  he  shows  that  such  property  was 
owned  by  him,  or  by  those  under  whom  he  claims,  and 
used  for  the  sale  of  intoxicating  liquors  prior  to  the  enact- 
ment of  the  statute  of  1855  of  this  State,  which  declared 
the  building-  or  place  where  prohibited  liquors  were  sold 
or  kept  a  nuisance,  and  provided  for  its  abatement.10 
Injunctions  granted  in  these  cases  are  binding  through- 
out the  judicial  district.11  If  two  parties  are  operating 
the  business  both  must  be  made  defendants  in  a  proceed- 
ing to  abate  the  nuisance.12  As  to  when  an  injunction 
should  be  granted  in  such  cases.13  When  it  should  not 
be  granted.14 

§  1074.  When  an  injunction  will  be  granted  gen- 
erally.— An  in  junction  may  be  granted  as  an  independent 
remedy  in  any  action  by  equitable  proceedings  when  such 
relief  would  have  been  granted  in  equity  previous  to  the 
adoption  of  the  code;  and  in  all  cases  of  breach  of  contract 
or  other  injury,  where  the  party  injured  is  entitled  to 
maintain,  and  has  brought  an  action  by  ordinary  proceed- 
ings, he  may,  in  the  same  cause,  pray  and  have  a  writ  of 
injunction  against  the  repetition  or  continuance  of  such 
breach  of  contract,  or  other  injury,  or  the  commission  of 
any  breach  of  contract  or  injury  of  a  like  kind  arising 
out  of  the  same  contract  or  relating  to  the  same  property 

o  Littleton  v.  Fritz,  65-488;  Pon-  is  Bloomer    v.     Glendy,     70-757; 

tius  v.  Winebrenner,  65-591;  Apple-  Littleton  v.  Fritz,  65-488;  Judge  v. 

gate  v.  Winebrenner,  66-67;    Pon-  Krebs,  71-183;  Tibbetts  v.  Burster, 

tius  v.   Bowman,   66-88;    Shermer-  76-176;  Martin  v.  Blattner,  68-286; 

horn  v.  Webber,  67-278;  Martin  v.  Gray  v.  Stienes,  69-124;  Littleton  v. 

Blattner,  68-286;  Jordan  v.  Circuit  Harris,  73-167;   State  v.  Douglass, 

Court,  69-177;  McLane  v.  Bonn,  70-  75-432;   McQuade  v.  Collins,  61  N. 

752;    State  v.  Jordan,  72-377;   and  W.,   213;    Hamilton   v.    Baker,  91- 

see  Radford  v.  Thornell,  81-709.  100;    Carter  v.   Steyer,   61   N.   W., 

10  McLane  v.  Leicht,  69-401.  956;  Banner  v.  Holtz,  74-389;  Pear- 

11  Code,  Sec.  2405;  McGlasson  v.  son  v.  Int.  Distillery,  72-348;  Far- 
Johnson,  86-477;  England  v.  John-  ley  v.  O'Malley,  77-531;    Farley  v. 
son,  86-751;   see  Carter  v.   Steyer,  Hollenfeltz,  79-126. 

61  N.  W.,  956.  i*  Gray  v.  Stienes,  69-124;  Shear 

12  Shear    v.    Green,    73-688;    see     v.  Green,  73-688;  Danner  v.  Holtz, 
Pierson  v.  Int.  Distillery,  72-348.        74-389;    State  v.   Ballingall,  42-87; 


288 


INJUNCTIONS 


[§ 


or  right,  and  he  may  also,  in  the  same  action,  include  a 
claim  for  damages  or  other  redress.15 

It  may  be  granted  in  an  action  for  breach  of  contract,16 
and  in  some  cases  when  a  trespass  is  threatened,17  and 
also  where  a  trespasser  commits  an  irreparable  injury 
and  he  is  insolvent.18  It  may  be  granted  to  stay  proceed- 
ings at  law  either  before  or  after  judgment.19  It  may 


State    v.    Price,    92-181;    State  v. 
Brinkman,  72-698. 

is  Code,  Sec.  4354;  Elwell  v. 
Greenwood,  26-377;  Berger  v.  Arm- 
strong, 41-447;  Hampson  v.  Weare, 
4-13;  Dunham  v.  Collier,  1  G.  Gr., 
54;  Smith  v.  Short,  11-523;  Givens 
v.  Campbell,  20-79;  Crawford  v. 
Paine,  19-172;  Way  v.  Lamb,  15-80; 
Kirchbaum  v.  Bridges,  1-14;  Lash 
v.  Butch,  4-215;  Schricker  v.  Field, 
9-366;  Haight  v.  City  of  Keokuk, 
4-199;  Key  City  G.  L.  &  C.  Co.  v. 
Munsell,  19-305;  Litchfield  v.  Polk 
County,  18-70;  Humphrey  v.  Dar- 
lington, 15-207;  Taggart  v.  Woods, 
20-236;  Reno  v.  Teagarden,  24-144; 
Cracker  v.  Robertson,  8-404;  Ana- 
mosa  v.  Wurzbacker,  37-25;  Chi- 
cago &  S.  W.  R.  Co.  v.  Swinney, 
38-182;  Brigham  v.  White,  44-677; 
Stokes  v.  Scott  County,  10-166; 
Horton  v.  Hoyt,  11-496;  Connelly 
V.  Griswold,  7-416;  Iowa  College 
v.  Davenport,  7-213;  McMahon  v. 
City  of  Council  Bluffs,  12-268; 
Musser  v.  Hershey,  42-356;  Hough- 
am  v.  Harvey,  33-203;  Zorger  v. 
The  Twp.  of  Rapids  et  al.,  36-175; 
Rood  v.  Board,  etc.,  39-444;  Spen- 
cer v.  Wheaton,  14-38;  Langworth 
v.  City  of  Dubuque,  13-86;  Olm- 
stead  v.  Board,  etc.,  24-33;  Will- 
iams v.  Peinny,  25-436;  Cattell  v. 
Lowery,  45-478;  Gibbs  v.  McFad- 
den,  39-371;  Ingham  v.  The  C.,  D. 
&  M.  R.  Co.,  38-669;  Richards  v. 
The  D.  V.  R.  Co.,  18-260;  Henry  v. 
The  D.  &  P.  R.  Co.,  10-540;  Hibbs 
v.  The  C.  &  S.  W.  R.  Co.,  39-340; 
Holbert  v.  The  St.  Louis,  K.  C.  & 
N.  R.  Co.,  45-23;  City  of  Council 
Bluffs  v.  Stewart,  51-385;  Littleton 
v.  Fritz,  65-488;  Pontius  v.  Wine- 
brenner,  65-491;  Applegatev.  Wine- 
brenner,  66-67;  Pontius  v.  Bov/- 
man,  66-88;  Shermerhorn  v.  Web- 
ber, 67-278;  Martin  v.  Blattner,  68- 
286;  Morgan  v.  Miller,  59-481; 


Dist.  Twp.  v.  Dist  Twp.,  54-115; 
Hall  v.  Grouse,  14-487;  Stafford  v. 
Shortreed,  62-524;  Hardin  v. 
White,  63-633;  Richmond  v.  The 
D.  &  S.  C.  R.  Co.  et  al.,  33-422; 
Brandriff  v.  Harrison  County,  50- 
164;  Rice  v.  Smith,  9-570;  Macklot 
v.  City  of  Davenport,  17-379;  Col- 
lins v.  Ripley,  18-129;  Sweatt  v. 
Faville,  23-321;  Martin  v.  Davis,  65 
N.  W.,  1001;  Thomas  v.  Farley  Mfg. 
Co.,  76-735;  Ladd  v.  Osborne,  79- 
93;  Trulock  v.  Merte,  72-510;  Tea- 
bout  v.  J  affray,  74-28;  Musch  v. 
Burkhart,  83-301;  Graves  v.  Key 
City  Gas  Co.,  83-714;  Moffit  v. 
Brainard,  92-122;  Clayton  County 
v.  Herwig,  69  N.  W.,  1035;  Harbach 
v.  D.,  M.  &  K.  C.  R.  Co.,  80-593; 
Standard  Coal  Co.  v.  Ind.  Dist., 
73-304;  Troe  v.  Larson,  84-649; 
Brockman  v.  Creston,  79-587;  Sny- 
der  v.  Foster,  77-638;  Searle  v. 
Abraham,  73-507;  Wood  v.  Murray, 
85-505;  Ellison  v.  Smythe,  75-570. 

is  Elwell  v.  Greenwood,  26-377; 
Berger  v.  Armstrong,  41-447; 
Macklot  v.  The  City  of  Davenport, 
17-379;  Hall  v.  Grouse,  14-487; 
Richmond  v.  D.  &  S.  C.  R.  Co.,  33- 
422;  Brandriff  v.  Harrison  County, 
50-164;  Rice  v.  Smith,  9-570. 

IT  Morgan  v.  Miller,  59-481;  Tru- 
lock v.  Merte,  72-510;  Martin  v. 
Davis,  65  N.  W.,  1001;  Ladd  v. 
Osborne,  79-93. 

is  Mills  v.  Hamilton,  49-105;  Bol- 
ten  v.  McShane,  67-207;  Davis  v. 
Hull,  67-479;  City  of  Council  Bluffs 
v.  Stewart,  51-385;  Holbert  v.  The 
St.  L.,  K.  C.  &  N.  R.  Co.,  45-23: 
Gibbs  v.  McFadden,  39-371;  Musch 
v.  Burkhart,  83-301;  Graves  v.  Key 
City  Gas  Co.,  83-714;  see  Waterloo 
v.  Waterloo  St.  R.  Co.,  71-193. 

i'->  Hampson  v.  Weare,  4-13;  Dun- 
ham v.  Collier,  1  G.  Greene,  54; 
Smith  v.  Sho;  11-523;  Givens  v. 
Campbell,  2U-79;  Crawford  v. 


§  1074.]  INJUNCTIONS.  289 

issue  to  prevent  trespass  in  violation  of  a  mandate  of  a 
court,20  to  restrain  the  making,  indorsement  or  negotia- 
tion of  negotiable  paper,  or  bonds,21  the  sale  of  land,  the 
sailing  of  a  ship,  the  transfer  of  stock,  or  the  alienation 
of  a  certain  chattel,  to  prevent  the  wasting  of  assets  or 
other  property  pending  litigation;22  to  prevent  trustees 
from  assigning  a  legal  estate,  or  assignees  from  making 
a  dividend;23  to  prevent  the  removing  out  of  the  jurisdic- 
tion, marrying  or  having  any  intercourse  which  the  court 
disapproves  of,  with  a  ward;24  to  restrain  the  commission 
of  waste;25  to  protect  possession  of  public  lands  where 
there  are  conflicting  entries  until  an  appeal  to  the  secre- 
tary of  the  interior  is  determined,26  to  restrain  official 
action  which  would  be  illegal  or  unlawful;27  to  prevent 
the  obstruction  of  the  outlet  of  a  lake;28  to  suppress  the 
continuance  of  a  public  or  private  nuisance;29  to  prevent 
infringements  of  patents  and  the  violation  of  copy- 
rights;30 to  restrain  the  collection  of  an  illegal  tax.31  So 
one  district  township  may  have  an  injunction  to  restrain 
another  district  township  from  removing  a  school  house 

Paine,  19-172;  Way  v.  Lamb,  15-80;  man  v.  Creston,  79-587;  Hanson  v. 
Kriechbaum  v.  Bridges,  1-14;  Lash  Hunter,  86-722. 
v.  Butch,  4-215;  Schricker  v.  Field,  23  Troe  v.  Larson,  84-649. 
9-366;  Haight  v.  The  City  of  Keo-  29  Horton  v.  Hoyt,  11-496;   Iowa 
kuk,  4-199;  The  Key  City  G.  L.  &  College   v.   City  of   Davenport,   7- 
C.  Co.  v.  Munsell,  19-305;  Taggart  213;  Coates  v.  City  of  Davenport, 
v.  Wood,  20-236;   Reno  v.  Teagar-  9-227;  McMahon  v.  City  of  Council 
den,  24-144;    Crocker  v.  Robinson,  Bluffs,  12-268;   Musser  v.  Hershey, 
8-404;  Anamosa  v.  Wurzbacker,  37-  42-356;    Ewell    v.    Greenwood,    26- 
25;     Brigham    v.     White,    44-677;  377;    Hougham  v.  Harvey,  33-203; 
Ramsdell    v.    Tama   Water   Power  Bushnell  v.  Robeson,  62-540;  Mill- 
Co.,  84-484;   Keokuk  &  N.  W.   R.  hiser  v.  Willard,  65  N.  W.,  325. 
Co.  v.  Donnell,  77-221.  so  2  Story  Eq.  Jur.  Sees.  930  to 

20  Ten  Eyck  v.  Sjoburg,  68-625.  959;    Eden  on  Inj.,  Chap.  1,  pp.  1 

21  Stokes  v.  Scott  County,  10-166;  and  2. 

Hull  v.  County  of  Marshall,  12-142;  si  Zorger  v.  The  Twp.  of  Rapids, 

Spencer  v.  Wheaton,  14-38.  36-175,   and   cases  cited;     Rood  v. 

22  Eden  on  Inj.,  Chap.  1,  pp.  1  Board  Sup.,  etc.,  39-444;  Spencer  v. 
and  2;   Story  Eq.  Jur.,  Sec.  872.  Wheaton,    14-38;     Langworthy    v. 

23  Eden  on  Inj.,   Chap.   1,   pp.  1  City  of  Dubuque,  13-86;   Litchfield 
and  2;   Story  Eq.  Jur.,  Sec.  872.  v.  Polk  County,  18-70;  Olmstead  v. 

2*  2  Story  Eq.  Jur.,  Sec.  872.  Bd.    of    Sup.,    24-33;    Williams    v. 

25Cowles  v.  Shaw  et  al.,  2-496;  Peinny,  25-436;  Cattell  v.  Lowery, 

see  Wilson  v.  Hughell,  Mor.,  383;  45-478;  The  Iowa,  F.  &  L.  C.  Ry. 

Ellison  v.  Smythe,  75-570.  Co.  v.  Cherokee  County,  37-483; 

26  Wood  v.  Murray,  85-505.  The  Iowa  Ry.  L.  Co.  v.  Story  Coun- 

27  Searle    v.     Abraham,    73-507;  ty,  36-48;  Standard  Coal  Co.  v.  Ind. 
Snyder  v.   Foster,  77-638;    Brock-  Dist.,  73-304. 

Vol.  11—13 


290  INJUNCTIONS.  [§  1074. 

from  the  territory  of  the  former.32  So  the  writ  may  issue 
to  enjoin  a  road  supervisor  from  interfering  with  fences, 
hedges,  watercourses  and  the  like;33  to  prevent  a  railroad 
company  from  condemning  lands  while  pretending  to 
want  them  for  a  use  for  which  they  were  authorized  to 
condemn,  when,  in  fact,  they  wanted  the  lands  for  a  pur- 
pose for  which  they  could  not  legally  condemn  them;34 
to  restrain  collection  of  a  tax  voted  to  a  railroad  com- 
pany after  such  company  has  transferred  its  road,  in 
pursuance  of  a  purpose  entertained  from  the  beginning  of 
which  public  notice  was  given  the  voters  before  elec- 
tion;35 to  restrain  a  public  officer  from  the  commission  of 
an  act  which  would  be  a  public  wrong;36  to  restrain  the 
diversion  of  a  street  to  objects  and  uses  inconsistent  with 
those  for  which  it  was  granted,37  and  a  railroad  company 
may  be  enjoined  from  entering  on  and  using  land  con- 
demned by  them  for  right  of  way,  unless  they  pay  the 
damages  awarded.38 

It  will  be  granted  to  enjoin  the  enforcement  of  a  judg- 
ment void  for  want  of  jurisdiction;39  and  to  restrain  a 
multiplicity  of  suits;  to  stop  the  progress  of  vexatious 
litigation;40  to  restrain  the  opening  or  vacation  of  a  high- 
way;41 to  restrain  the  operation  of  a  railway  over  the 
streets  of  a  city  where  it  has  not  paid  damages  to  the 
abutting  property  owners;42  to  restrain  the  wrongful 
maintenance  of  a  drain  which  casts  an  unusual  amount 
of  surface  water  upon  one's  premises.43 

A  taxpayer  and  citizen  may  maintain  an  action  to  en- 
join the  issuance  by  the  county  auditor  of  a  warrant  in 

32  Dist.  Twp.  v.  Dist.  Twp.,  54-      Co.,  10-540;  Hibbs  v.  The  C.  &  S. 
115.  W.  R.  Co.,  39-340. 

33  Bolton  v.  McShane,  67-207.  39  Connell  v.  Stelson,  33-147;  see 
s*  Forbes  v.  Delashmutt,  68-164.        Hardin  v.  White,  63-633. 

86  Blunt  v.  Carpenter,  68-265.  40  2    Story    Eq.    Jur.,    Sees.    901, 

36  Collins  v.  Ripley,  8-129;  Han-  902,  905,  906,  958. 

son  v.   Hunter,  86-722;    Brockman  41  Moffit     v.     Brainard,     92-122; 

v.  Creston,  79-587;  Snyder  v.  Fos-  Clayton  County  v.  Herwig,  69  N. 

ter,  77-638.  W.,  1035. 

ST  Ingham  v.  The  C.,  D.  &  M.  R.  *2  Harbach  v.  D.,  M.  &  K.  C.  R. 

Co.,  38-669.  Co.,  80-593. 

ss  Richards  v.  The  D.  V.  R.  Co.,  «  Holmes  v.  Calhoun  County,  66 

18-260;    Henry  v.  The  D.  &  P.  R.  N.  W.,  145. 


§  1075.]  IX  JUNCTIONS.  291 

payment  of  a  refund  of  taxes  illegally  ordered  by  the 
board  of  supervisors.44 

And  the  statute  specially  authorizes  the  issuance  of  an 
injunction  when  application  is  made  to  vacate  or  modify 
a  judgment;45  to  restrain  the  foreclosure  of  a  chattel 
mortgage  by  notice  and  sale;46  to  enjoin  the  erection  or 
continuance  of  a  nuisance;47  and  it  will  lie  to  restrain  the 
collection  of  taxes  levied  without  authority  of  law;48  to 
restrain  acts  likely  to  cause  irreparable  injury  in  certain 
cases;49  to  restrain  a  judgment  creditor  living  in  this 
State,  from  subjecting  to  the  payment  of  his  judgment, 
in  the  courts  of  another  State,  the  exempt  wages  of  the 
debtor  due  him  from  a  railroad  company  doing  business 
in  both  States;  when  the  judgment  debtor  is  also  a  resi- 
dent of  this  State;50  to  restrain  payment  of  more  than  a 
school  house  is  reasonably  worth  to  a  contractor  to  whom 
the  directors  are  about  to  pay  the  contract  price,  when 
the  building  fails  to  conform  to  the  terms  of  the  con- 
tract.51 

§  1075.  When  an  injunction  will  be  refused. — In 
the  following  cases  it  has  been  held  that  a  writ  of  in- 
junction would  be  refused:  Where  a  creditor  having  a 
lien  on  real  estate  of  his  debtor,  before  obtaining  judg- 
ment sought  to  restrain  the  sale  of  the  same.52  When  it 
is  sought  to  determine  the  right  to  a  public  office  or 
franchise.53  When  it  is  sought  to  enjoin  collection  of 
taxes  for  mere  irregularities  in  the  assessment  or  where 

44  Hospers  v.  Wyatt,  63-264.  •*«  Olmstead  v.  Bd.  of  Sup.,  etc., 

45  Code,  Sec.  4098.  25-33;  The  I.,  F.  &  S.  C.  Ry.  Co.  v. 

46  Code,    Sec.    4283;    Hamlin    v.  Cherokee  County,  37-483;    The  I., 
Parsons,   33-207;    Braitch   v.   Gue-  R.  L.  Co.  v.  Story  Co.,  36-48;  Zor- 
lick,   37-212;    Treanor   v.   Sheldon  ger  v.  The  Twp.  of  Rapids  et  al., 
Bank,  90-575.  36-175,  and  cases  cited,  and  Stand- 

*7Ewell  v.  Greenwood,    26-377;  ard  Coal  Co.  v.  Ind.  Dist,  73-304. 
Bills  v.  Belknap,  36-583;  Finley  v.          49  Code,  Sec.  4356. 
Hershey,  41-389;    State  v.  Kartee,         so  Teager    v.    Landsley,    69-725; 

35-221;    Code,  Sec.  4302;  Shiras  v.  Hager  v.  Adams,  70-746. 
Olinger,  50-571;    Baker  v.   Bohan-          si  Carthan  v.  Lang,  69-384. 
nan,  69-62;  Miller  v.  Webster  City,         52  Buchanan    v.    Marsh,    17-494, 

62  N.  W.,  648;  Trulock  v.  Merte,  72-  and  cases  cited. 
510;    Millheiser  v.  Willard,  65  N.         es  Cochran  v.  McLeary,  22-75. 
W.,  325. 


292  INJUNCTIONS.  [§  1075. 

an  erroneous  assessment  works  no  injury.54  One  who  is 
not  injured  by  the  fencing  up  of  a  street  can  not  restrain 
its  enclosure.55  Where  one  sells  his  business  and  good 
will,  and  enters  into  bond  not  to  engage  in  the  same  busi- 
ness at  the  same  place.56  Facts  not  warranting  an  in- 
junction in  aid  of  landlord's  lien.57  The  holder  of  a  senior 
lien  on  real  estate  is  not  entitled  to  an  injunction  to  re- 
strain a  sale  of  property  for  satisfaction  of  junior  lien.58 
So  one  holding  a  mortgage  on  chattels  can  not  have  an  in- 
junction to  restrain  sale  of  same  under  a  senior  mortgage 
on  the  ground  that  the  property  is  not  covered  by  such 
senior  mortgage.59  And  in  some  cases  it  will  not  be 
granted  to  delav  execution  on  a  judgment.60 

Nor  will  it  lie  to  restrain  the  collection  of  a  tax  for  a 
new  school  house  on  the  ground  that  the  district  has  a 
house,  when  it  is  not  shown  that  the  district  does  not  need 
a  new  one;  and  after  the  house  is  built,  and  tax  voted,  a 
taxpayer  can  not  restrain  its  collection  on  the  grounds 
that  the  board  did  not  consult  with  the  county  superin- 
tendent, and  no  proposals  were  invited,  and  the  work  was 
not  let  to  lowest  bidder,  and  no  bonds  were  required  of  the 
contractors.61  So  one  failing  to  show  an  interest  in  lands 
sold  for  taxes  can  not  maintain  action  to  restrain  the 
county  treasurer  from  executing  a  deed  to  the  pur- 
chaser.62 Nor  will  it  be  granted  to  restrain  the  execu- 
tion of  a  judgment  regular  on  its  face,  when  it  is  not 
shown  that  there  is  a  good  defense  to  the  claim.63  Nor 
to  restrain  an  execution  on  a  judgment,  or  declare  the 
same  invalid  because  of  a  defect  in  the  action  in  which 
it  was  rendered,  of  which  plaintiff  had  no  knowledge  at 

B*  Patterson  v.  Baumer,  43-477;          B6  Stafford  v.  Shortreed,  62-524. 
The  C.  R.  &  M.  R.  R.  v.  Carroll         57  stibbs  v.  Anger,  65-318;   Mil- 
County,  41-153;  Conway  v.  Younk-  ner  v.  Cooper,  65-190. 
in,  28-295;  The  I.  R.  L.  Co.  v.  Car-          **  Wiedner  v.  Thompson,  66-283. 
roll  County,  39-151;   Same  v.  Sac         B9  Rankin  v.  Rankin,  67-322. 
Co.,  39-124;   The  S.  C.  &  St.  Paul          eo  Baker  v.  Ryan,  67-708. 
R.  Co.  v.  The  County  of  Osceola,         «i  Casey   v.    The    Ind.    Dist.    of 
45-168;  Wilson  v.  Cass  County,  69-  Nutt,  64-659. 
147.  62  Johnson  v.  Brett,  64-162. 

BB  Prince  v.  McCoy,  40-533.  «s  Taggart  v.  Wood,  20-236. 


§  1076.]  INJUNCTIONS.  293 

the  time  it  was  pending.64  Nor  to  interfere  with  pro- 
ceedings of  forcible  entry  and  detainer,  when  there  is  no 
allegation  of  fraud,  mistake,  accident  or  surprise.65  It 
will  not  lie  to  restrain  the  board  of  supervisors  from  act- 
ing in  a  matter  over  which  they  have  exclusive  juris- 
diction.66 So  when  by  agreement  of  parties  a  judgment 
is  to  be  paid  within  a  time  fixed,  and  the  judgment  cred- 
itor before  that  time  expires  issues  execution,  the  judg- 
ment debtor  can  not  enjoin  proceedings  under  the  execu- 
tion without  first  offering  to  pay  the  judgment  in  accord- 
ance with  the  terms  of  the  agreement.67  Nor  will  it  be 
granted  when  the  party  has  a  plain,  speedy  and  adequate 
remedy  at  law,68  nor  where  an  injunction  has  already  been 
granted  to  attain  the  same  object.69 

§  1076.  Of  parties  to  the  action. — The  lessor  of  a 
building  in  which  intoxicating  liquors  are  sold  may  be 
made  a  party  defendant.70  So  one  who  is  about  to  re- 
ceive conveyance  of  land  in  consummation  of  a  con- 
spiracy to  defraud  the  true  owner,  may  be  made  a  party 
defendant,  and  in  such  a  case  it  is  proper  to  make  the 
county  recorder  a  party  defendant  to  prevent  his  record- 
ing the  conveyance;  but  no  judgment  for  cost  should 
be  rendered  against  him.71  So  when  parties  are  numer- 
ous and  it  is  impracticable  to  bring  them  all  before  the 
court,  and  they  have  a  common  interest  in  the  subject  of 
the  litigation,  they  holding  under  a  conveyance  which  de- 
fendants fraudulently  seek  to  defeat,  one  of  them  may 
prosecute  an  action  to  enjoin  the  consummation  of  the 
fraud  for  the  benefit  of  all.72  Where  the  doing  of  certain 
work  under  the  direction  of  a  city  council  is  enjoined, 

e*Wilsey  v.  Maynard,  21-107.  ty,  77-226;  Hanson  v.  Hunter,  86- 

es  Lamb  v.  Drew,  20-15.  722. 

6«  Luce  v.  Feusler,  85-596.  69  Dickenson  v.  Eichorn,  78-710. 

6T  Anamosa  v.  Wurzbacher,   37-  ™  Martin  v.  Blattner,  68-286. 

25.  ™  Palo  Alto  Bkg.,  etc.,  v.  Mahar, 

ss  City  of  Waterloo  v.  Waterloo  65-74;    see   Brandirff  v.   Harrison 

Street  R.  Co.,   71-193;    Thomas  v.  County,  50-164. 

Farley  Mfg.  Co.,  76-735;  Rockwell  "2  paio  Alto  Bkg.,  etc.,  v.  Mahar, 

v.  Bowers,  88-88;  Ridley  v.  Dough-  65-74;  Brandirff  v.  Harrison  Coun- 
ty, 50-164. 


294  INJUNCTIONS.          [§§  1077,  1078,  1079, 

the  one  employed  to  do  the  work  is  a  proper  party  de- 
fendant73 

§  1077.  How  and  at  what  time  it  may  be  granted. 
-The  injunction  may  be  applied  for  and  granted  as  an  in- 
dependent means  of  relief,  or  as  auxiliary  to  other  pro- 
ceedings;74 and  it  may  be  either  a  part  of  the  judgment 
rendered  in  the  action,  or  it  may,  if  proper  grounds  there- 
for are  shown,  be  granted  by  order  of  the  court  or  judge 
at  any  stage  of  the  case  before  judgment,  and  in  the  lat- 
ter case  will  be  known  as  a  temporary  injunction.75 

§  1078.  Same. — When  it  appears  by  the  petition, 
which  must  be  supported  by  affidavit,  that  the  plaintiff  is 
entitled  to  the  relief  demanded,  and  such  relief,  or  any 
part  thereof,  consists  in  restraining  the  commission,  or 
continuance,  of  some  act  which  would  produce  great  or 
irreparable  injury  to  the  plaintiff,  or  where  during  liti- 
gation it  appears  that  the  defendant  is  doing,  or  threat- 
ens, or  is  about  to  do,  or  is  procuring  or  suffering  to  be 
done,  some  act  in  violation  of  the  plaintiff's  rights,  or 
respecting  the  subject  of  the  action,  and  tending  to  ren- 
der the  judgment  ineffectual,  a  temporary  injunction  may 
be  granted  to  restrain  such  act.  It  may  also  be  granted 
in  any  case  where  it  is  specially  provided  by  statute.76 

§  1079,  Rules  governing  the  granting  of  injunc- 
tions— Powers  of  the  court. — In  an  action  at  law  a  party 
applying  for  a  writ  of -injunction  need  not  bring  himself 
within  the  rules  and  usages  of  a  court  erf  chancery.  It 
is  sufficient  if  he  comply  with  the  statute.77  The  pro- 
visions of  the  statute  authorizing  the  issuance  of  an  in- 
junction in  law  actions,  do  not  confer  on  law  courts,  gen- 
eral or  special  chancery  jurisdiction,  or  power  to  grant 
new  remedies  beyond  that  of  issuing  and  enforcing  an 
injunction  against  the  repetition  or  continuance  of 
breaches  of  contract,  or  other  injury,  which,  under  the 

TS  Bush  v.  Dubuque,  69-233.  R.  Co.  v.  Cedar  Falls  &  M.  R.  Co., 

74  Code,  Sec.  4354.  76-702;  Price  v.  Baldauf,  82-669. 

75  Code,  Sec.  4355.  7?  Buchanan    v.    Marsh,    17-494; 

76  Code,    Sec.    4356;     Zorger    v.  Hall  v.  Crouse,  14-487. 
Twp.  of  Rapids,  36-175;  D.  &  S.  C. 


§  1080.]  INJUNCTIONS.  295 

statutes,  authorize  the  issuance  of  the  writ.78  An  in- 
junction should  not  be  granted  where  asked  as  auxiliary 
relief  by  a  motion  without  verification  or  bond.79  Nor 
should  it  issue  in  aid  of  quo  warranto  proceedings 
brought  in  the  name  of  the  State.80 

§  1080.  By  whom  and  when  a  temporary  injunc- 
tion will  be  granted. — A  temporary  injunction  may  be 
granted  by  the  court,  or  judge  thereof,  in  which  the  action 
is  pending,  or  is  to  be  brought;  or  by  any  judge  of  the  dis- 
trict court  of  such  district,  by  a  superior  court  in  the 
proper  county,  and  by  any  judge  of  the  supreme  court,  or 
by  a  judge  of  any  other  district  court  But  in  causes 
where  an  action  is  pending,  and  the  writ  is  applied  for  to 
effect  the  subject-matter  of  such  action,  it  can  only  be 
granted  by  the  court,  or  judge  thereof,  in  which  such 
action  is  pending.  Nor  will  it  be  granted  by  any  other 
judge  of  the  district  court  of  such  district,  or  by  a  superior 
court,  unless  it  satisfactorily  appears  by  affidavit,  that 
the  court,  or  judge  thereof,  in  which  the  action  is  brought, 
can  not,  for  want  of  time,  sickness  or  other  disability,  hear 
the  same,  or  that  the  residence  of  the  judge  is  incon- 
venient, or  that  it  is  for  some  sufficient  reason  imprac- 
ticable to  make  the  application  to  him.  Nor  will  it  be 
granted  by  any  supreme  judge,  or  by  a  judge  of  any  other 
district  court,  unless  it  be  made  satisfactorily  to  appear 
to  such  judge  by  affidavit,  that  the  application  can  not, 
for  some  sufficient  reason,  be  made  to  either  the  court,  or 
judge,  in  which  the  action  is  pending,  or  to  some  other 
district  judge  of  that  district,  if  there  be  any,  or  to  a 
superior  court.81  The  supreme  court  has  no  power  to 
grant  any  injunction  upon  original  proceedings.82  The 
writ  may  be  granted  in  vacation;  and  by  vacation  is 
meant  at  any  time  when  the  court  is  not  actually  in  ses- 
sion, and  it  is  not  restricted  to  the  time  between  terms.83 

TS  Richmond  v.  Dubuque  &  S.  C.  si  Code,  Sec.  4357;  Cooney  v. 
R.  Co.,  33-422.  Moroney,  45-292. 

79  Pendleton  v.  Laub,  64  N.  W.,  **  Reed  v.  Murphy,  2  G.  Greene, 
653.  568. 

so  State  v.  Simpkins,  77-676.  83  Thompson  v.  Benepe,  67-79; 

Code,  Sees.  4357,  4362. 


296  INJUNCTIONS.  [§§  1081,  1082. 

No  injunction  will  be  granted  by  a  judge,  after  the  appli- 
cation therefor  has  been  overruled  by  the  court;  nor  by  a 
court  or  judge,  when  it  has  been  refused  by  the  court,  or 
judge  thereof,  in  which  the  action  is  brought.  A  judge 
refusing  an  injunction  must,  if  requested  by  either  party, 
give  him  a  certificate  thereof.84  The  refusal  to  grant  a 
temporary  injunction  will  not  prevent  the  issuance  of  an 
injunction  on  a  subsequent  application  presenting  a  dif- 
ferent case.85  If  the  order  is  made  by  the  court,  the  clerk 
must  make  an  entry  therein  in  the  court  record,  and  issue 
the  order  accordingly.  If  made  in  vacation,  the  judge 
must  indorse  said  order  upon  the  petition.86  But  this 
requirement  is  directory  only,  and  the  order  may  be  made 
on  a  separate  paper.8T 

§  1081.  When  not  granted  without  notice. — An  in- 
junction will  not  be  granted  against  a  defendant  who  has 
answered,  unless  he  has  had  notice  of  the  application.88 
An  injunction  to  stop  the  general  and  ordinary  business 
of  a  corporation,  or  the  operations  of  a  railway,  or  of  a 
municipal  corporation,  or  the  erection  of  any  building,  or 
other  work,  or  the  board  of  supervisors  of  any  county,  or 
to  restrain  a  nuisance,  can  only  be  granted  upon  reason- 
able notice  of  the  time  and  place  of  the  application  to  the 
party  to  be  enjoined,  nor  can  any  temporary  writ  of  in- 
junction be  allowed  by  any  judge  during  term  time,  unless 
the  petition  is  filed  with  the  clerk  and  entered  upon  the 
calendar  of  that  term,  and  if  granted  the  order  allowing 
it  must  also  be  entered.89  The  notice  required  by  the 
statute  is  such  notice  as  the  court  to  whom  the  applica- 
tion is  made  direct,  and  the  court  may  require  notice  of 
the  application  to  be  given  in  any  case  in  which  he  may 
deem  it  proper. 

§  1082.    Form  and  requisites  of  the  petition. — The 

84  Code,  Sec.  4360.  87  Jordan  v.  Circuit  Court,  69-177. 

ss  Graves  v.  Key  City  Gas  Co.,          ss  Code.  Sec.  4358. 
83-714.  89  Code,    Sec.    -±359;     Hughes    v. 

se  Code,  Sec.   4362.  Eckerson,  55-641;   Johnston  v.  C., 

M.  &  St.  Paul  Ry.  Co.,  58-537. 


§  1082.]  INJUNCTIONS.  297 

petition  must  be  sworn  to.90  It  must  conform  to  the  re- 
quirements of  a  petition  in  equity,91  and  state  the  neces- 
sary facts  showing  plaintiff  is  entitled  to  the  relief  sought. 
The  following  forms  may  be  changed  to  conform  to  the 
facts  in  each  case: 

FORM  OF  PETITION  FOR  INJUNCTION  TO  ABATE  NUISANCE  RE- 
LATING TO  THE  SALE  OF  INTOXICATING  LIQUORS. 

!  Title,    ) 
Venue,  j 

Par.  1.  This  action  is  instituted  and  prosecuted  in  the  name  of 
(name  of  party  complaining)  for  the  abatement  of  a  nuisance.  The 
said  (name  of  the  party  complaining)  complaining  of  the  defendant 
herein,  shows  to  the  court: 

Par.  2.  That  said  (name  of  party  complaining)  prosecutor,  is  now 
and  for  (insert  number)  years  past  has  been  an  actual  resident,  and  citi- 
zen of county,  Iowa,  and  as  such  is  interested  in  the  peace,  wel- 
fare and  good  order  of  the  inhabitants  of  said  county. 

Par.  3.  That  the  defendant  in  the  county  and  State  aforesaid  has 
established,  and  is  using,  keeping  and  maintaining,  a  building,  situated 

on  lot  No. in  block  No. in  the  town  (or  city)  of for 

the  sale  of  intoxicating  liquors  as  a  beverage  in  violation  of  law,  and  as 
a  place  for  the  keeping  of  such  intoxicating  liquors,  with  intent  to  sell 
the  same  as  a  beverage  in  violation  of  law. 

Par.  4.  That  on  and  after  the  —  —  day  of ,  18 — ,  and  prior 

to  the  commencement  of  this  action,  the  said  defendant  did  illegally  sell 
intoxicating  liquors,  to  wit,  whisky  and  brandy,  at  the  place  aforesaid, 
to  the  following  named  persons,  viz.: 

To on  the day  of 18, — ;  to on  the 

day  of ,  18 —  (here  insert  statement  of  all  sales  relied  on  as  il- 
legal), and  to  numerous  other  persons  whose  names  are  unknown  to  the 
prosecutor  herein. 

Par.  5.  That  the  defendant  at  the  place  aforesaid  and  from  the 

—  day  of ,  18 — ,  until  the day  of 18 — ,  has  owned 

and  kept  in  his  building  aforesaid  intoxicating  liquors  for  the  purpose, 
and  with  the  intent  on  his  part  to  sell  the  same  therein  contrary  to  law. 

Par.  6.  That  unless  restrained  by  this  court,  the  said  will 

continue  at  said  place  to  illegally  keep  for  sale,  and  sell,  intoxicating 
liquors,  and  said  building  will  continue  to  be  a  nuisance  to  the  irrepara- 
ble injury  of  the  plaintiff,  this  prosecutor,  and  the  citizens  of  said 
county.  Wherefore  plaintiff  prays  that  said  nuisance  may  be  abated 
and  enjoined.  That  said  defendant  be  enjoined  by  himself,  agents  or 
servants  from  in  any  manner  selling  in  violation  of  law,  or  keeping  for 
sale  with  intent  to  sell  in  violation  of  law,  any  intoxicating  liquors  in 
said  building  or  any  part  thereof;  that  a  temporary  injunction  issue  in 

so  Code,  Sec.  4356.  91  See  chapter  on  Petition. 


298  INJUNCTIONS.  [§  1082. 

accordance  with  this  prayer  and  that  on  final  hearing  said  injunction  be 
made  perpetual,  and  for  such  other  relief  as  may  be  deemed  equitable  in 
the  premises,  and  for  costs,  including  a  reasonable  attorney's  fee. 

,  attorney  for  plaintiff. 

(Add  verification.) 


FORM  OF  PETITION  FOR  INJUNCTION  TO  RESTRAIN  JUDICIAL 

SALE. 


Title, 
Venue 


.1 


The  plaintiff  states: 

Par.  1.  That  he  is  the  owner  in  fee  simple  of  the  following  described 
real  estate,  to  wit  (here  describe  the  land). 

Par.  2.    That  on  the day  of A.  D.  18—,  the  defendant, 

,  obtained  a  judgment  in  the  (name  of  the  court  where  the  Judg- 
ment was  rendered),  against for dollars  and  costs. 

Par.  3.    That  an  execution  has  been  issued  on  said  judgment,  at  the 

instance  of  the  said — ,  and  placed  in  the  hands  of  the  said  , 

who  is  the  acting  sheriff  of county,  Iowa,  a  copy  of  which  is  here- 
to annexed,  marked  exhibit  "A,"  and  made  part  hereof. 

Par.  4.    That  said  defendant, ,  on  the day  of A. 

D.  18 — ,  under  said  writ  of  execution,  levied  upon  the  real  estate  above 

described  as  the  property  of  said  ,  and  has  advertised  the  same 

for  sale  on  said  execution;  a  copy  of  the  notice  of  sale  is  hereto  annexed, 
marked  exhibit  "B,"  and  made  part  hereof. 

Par.  5.  That  the  said  judgment  is  not,  and  at  no  time  has  been,  a 
lien  upon  said  real  estate,  or  upon  any  part  thereof,  or  upon  any  interest 
therein. 

Par.  6.  That  a  sale  of  said  property  under  said  execution  would 
create  a  cloud  upon  the  plaintiffs  title  thereto,  and  the  plaintiff  is  and 
will  be  remediless  at  law  to  remove  such  cloud. 

Wherefore,  the  plaintiff  prays  that  a  temporary  injunction  be  issued 
to  restrain  said  execution  sale,  and  enjoining  and  restraining  said  plain- 
tiff from  enforcing  said  judgment  against  said  real  estate,  or  any  part 
thereof;  that  said  judgment  be  decreed  to  be  no  lien  on  said  real  estate, 
and  that  on  final  hearing  said  injunction  be  made  perpetual,  and  for 
such  other  and  further  relief  as  shall  be  adjudged  equitable  in  the  prem- 
ises and  for  costs. 

,  attorney  for  plaintiff. 

(Add  the  usual  verification,  and  annex  the  exhibits  referred  to  in  the 
petition.) 

In  case  a  mortgagor  files  his  petition  in  equity,  and 
seeks  by  injunction  to  restrain  a  sale  under  the  mort- 
gage, admitting  that  something  is  due  thereon,  he  must 
plead  a  tender  of,  and  offer  to  pay  the  amount  due,  be- 


§  1083.]  INJUNCTIONS.  299 

fore  he  can  have  an  injunction.1  The  petition  must  show 
that  plaintiff  has  no  adequate  remedy  at  law,2  and,  as  has 
been  already  stated,  if  it  is  sought  to  restrain  the  collec- 
tion of  a  judgment,  the  petition  must  show  that  the  plain- 
tiff has  a  good  defense  to  the  action,  or  that  a  new  trial 
would  result  differently.3  He  should  show  that  injustice 
was  done  him,  and  that  he  could  not  have  availed  himself 
of  his  defense  in  a  court  of  law,  or  that  he  has  been  pre- 
vented from  so  doing  by  fraud  or  accident,  and  through 
no  fault  or  negligence  on  his  part.4 

§  1083.  Of  the  allowance  of  the  writ. — If  the  order 
allowing  the  writ  is  made  in  term  time  during  a  session  of 
the  court,  the  clerk  must  make  an  entry  thereof  on  the 
record  and  issue  the  order;  if  made  in  vacation  the  judge 
must  indorse  the  order  upon  the  petition.5  The  judge 
must  fix  the  penalty  of  the  bond  so  as  to  be  twice  the  prob- 
able amount  of  liability  to  be  thereby  incurred.6 

The  court  or  judge,  before  granting  the  writ,  may,  if 
deemed  advisable,  allow  the  defendant  an  opportunity  to 
show  cause  why  such  order  should  not  be  granted,7  and 
if  the  court  so  orders,  he  will  fix  the  time  and  place  of 
hearing  and  require  the  plaintiff  to  serve  notice  on  de- 
fendant. Such  notice  may  be  in  the  following  form: 

FORM  OF  NOTICE  OF  HEARING  OF  APPLICATION  FOR  AN  IN- 
JUNCTION. 

Title,    ) 
Venue.  ) 


To 


Sir: — You  are  hereby  notified  that  the  above  named  plaintiff  on  the 
—  day  of ,  18 — ,  filed  in  the  clerk's  office  of  the  (name  of  court) 


his  petition  claiming  (here  state  in  general  terms  the  nature  of  the  ac- 
tion and  the  remedy  sought) ;  that  said  plaintiff  has  applied  to  the  court 
(or  judge)  for  an  order  for  a  temporary  injunction  as  prayed  in  said  pe- 
tition, and  that  the  (court  or  judge)  will  hear  said  application  on  the 

1  Stringham     v.     Brown,     7-33;          « Code,  Sec.  4362. 

Sloan  v.  Coolbaugh,  10-31.  « Code,    Sec.    4366;     Hardin    v. 

2  Cowles  v.  Shaw,  2-496    (Cole's      White,  63-633. 

Ed.);  see  cases  cited.  f  Code,  Sec.  4367;  Curtis  v. Crane, 

s  Way  v.  Lamb,  15-79.  38-460. 

*  Shricker  v.  Field,  9-366;  John- 
son v.  Lyon,  14-431. 


300  ix  JUNCTIONS.  [§  1084. 

(state  the  time  fixed)  at  (state  place  of  hearing)  when  and  where  you 
may  appear  and  show  cause  against  said  application  if  you  think  proper. 

(Signature  of  plaintiff  or  his  attorney.) 

If  on  said  hearing  (or  on  reading  the  petition  without 
having  a  hearing  thereon)  the  court  or  judge  order  an  in- 
junction to  issue,  such  order  may  be  as  follows: 

FORM  OF  ORDER  ALLOWING  INJUNCTION. 

State  of  Iowa,    ) 
County,  f 

Upon  reading  the  within  petition  (or  hearing  the  parties)  It  Is 
ordered:  That  the  writ  of  injunction  therein  prayed  do  issue,  upon  the 
filing  of  a  bond  in  the  office  of  the  clerk  of  the  court  named  in  the  peti- 
tion, conditioned  as  required  by  law,  in  the  penalty  of  —  -  dollars, 
with  sureties  to  be  approved  by  said  clerk. 

Dated  this day  of ,  18—. 

,  judge  of  (name  of  court). 

§  1084.  Of  the  bond. — No  injunction  can  issue  (ex- 
cept to  restrain  nuisances  relating  to  the  manufacture 
and  sale  of  intoxicating  liquors),  until  a  bond  be  filed  in 
the  office  of  the  clerk  of  the  court  in  a  penalty  which  has 
been  fixed  in  the  order  directing  the  writ  to  issue,  with 
sureties  to  be  approved  by  the  clerk,  and  conditioned  for 
the  payment  of  all  damages  which  may  be  adjudged 
against  plaintiff,  by  reason  of  the  injunction.8  When 
proceedings  in  a  civil  action,  or  on  a  judgment,  or  final 
order,  are  sought  to  be  enjoined,  the  action  must  be 
brought  in  the  county  and  court  in  which  such  action  is 
pending,  or  the  judgment  or  order  was  obtained,  unless 
such  judgment  or  final  order  is  obtained  in  the  supreme 
court  in  which  case  the  action  must  be  brought  in  the 
county  and  court  from  which  the  case  was  appealed;  and 
in  an  action  to  enjoin  the  proceedings  in  a  civil  action,  or 
on  a  judgment  or  final  orderthe  bond  must  be  further  con- 
ditioned to  pay  such  judgment  or  comply  with  such  final 
order,  if  the  injunction  is  not  made  perpetual;  or  to  pay 

s  Code,     Sec.     4363;      Reece     v.      Leacox,   59-42;    Hibbs  v.  Western 
North  way,  58-187;    Carroll  County      Land  Co.,  81-285. 
V.  I.  R.   L.   Co.,  53-685;    Towle  v. 


§  1084.]  INJUNCTIONS.  301 

any  judgment  that  may  be  ultimately  recovered  against 
the  party  obtaining  the  injunction,  on  the  cause  of  action 
enjoined.9  If  the  judgment  is  void  by  reason  of  want  of 
notice  an  action  to  cancel  it  may  be  brought  in  any  court 
of  competent  jurisdiction.10  The  bond  may  be  in  the  fol- 
lowing form : 

FORM  OF  INJUNCTION'  BOND. 

Know  all  men  by  these  presents: 

That  we ,  principal,  and and ,  sureties,  are  held 

and  firmly  bound  unto in  the  penal  sum  of dollars,  lawful 

money  of  the  United  States,  well  and  truly  to  be  paid  to  the  said 

and  to  his  heirs,  executors  and  assigns.    The  condition  of  the  above 

obligation  is  such  that  whereas,  the  said has  this  day  filed  (or  the 

exact  day)  in  the  office  of  the  clerk  of  the  district  court  of  the  State  of 
Iowa,  in  and  for county,  a  petition  praying  the  issuance  of  an  in- 
junction to  restrain  the  sale  of  the  following  described  real  estate,  to 

wit  (here  describe  the  premises),  which  on  the day  of A.  D. 

18 — ,  was  levied  upon  by  the  said  -     — ,  the  acting  sheriff  of  

county,  under  and  by  virtue  of  an  execution  issued  from  (name  of  the 

court),  in  favor  of  the  said ,  and  against  one ;    and  whereas, 

on  the day  of A.  D.  18 — ,  the  Hon. ,  judge  of  (name 

the  proper  court),  made  an  order  on  said  petition  allowing  said  writ  of 
injunction  upon  (here  recite  the  terms  of  the  order  of  allowance). 

Now,  therefore,  if  the  said shall  and  will  pay  all  the  damages 

which  may  be  adjudged  against  him  by  reason  of  such  injunction  (if  pro- 
ceedings in  a  civil  action,  or  on  a  judgment  or  final  order,  are  sought  to 
be  enjoined,  then  add  the  following:  "And  will  also  pay  the  said  judg- 
ment," if  one  has  been  entered;  if  it  is  an  order,  say,  "will  comply  with 
said  order,  if  the  injunction  is  not  made  perpetual;"  if  the  action  is 
pending  say,  "will  pay  any  judgment  that  may  be  ultimately  recovered 
against  said  plaintiff") :  then  this  obligation  to  be  void,  otherwise  to  be 
and  remain  in  full  force  and  virtue. 

Dated  this day  of ,  18—. 

,  principal, 


'  j.  sureties. 

(Add  justification.) 

The  clerk  may  require  the  sureties  to  justify  as  in  other 
cases,  and  must  indorse  upon  the  bond  his  approval  of 
the  sureties,  and  mark  the  bond  filed.  It  is  in  the  power 

»Code,  Sees.  4364,  4365;  Davis  v.  622;  Hardin  v.  White,  63-633;  Phe- 

Bonar,  15-171;  Lcckwood  v.  Kitter-  Ian  v.  Johnson,  80-727. 

ingham,  42-257;  Anderson  v.  Hall,  10  State  Ins.  Co.  v.  Waterhouse, 

48-346;    Grattan  v.  Matteson,    51-  78-674;  Phelan  v.  Johnson,  80-727. 


302  INJUNCTIONS.  [§  1085. 

of  the  court,  in  case  the  litigation  is  protracted,  to  re- 
quire an  additional  bond  for  further  security  to  meet  such 
contingency.11 

§  1085.  Of  action  on  injunction  bonds. — Any  per- 
son for  whose  security  an  injunction  bond  must  have  been 
intended  may  maintain  an  action  thereon,  even  though 
it  be  not  payable  to  such  person.12  An  injunction  bond 
is  to  secure  such  damages  as  may  be  adjudged  against  the 
obligor  in  an  action  brought  to  determine  whether  any 
damages  have  been  sustained — a  question  which  can  not 
be  settled  in  the  injunction  case;  the  value  of  the  attor- 
ney's services  in  procuring  a  dissolution  of  the  injunction 
is  an  element  of  such  damages.13  And  no  attorney's  fees 
are  recoverable  for  procuring  affidavits  on  motion  to  dis- 
solve an  injunction  when  the  writ  was  granted  on  an 
insufficient  petition.  Nor  can  attorney's  fees  be  allowed 
for  services  in  the  supreme  court  on  an  appeal  from  an 
order  of  dissolution.14  In  an  action  on  the  bond  services 
of  attorneys  in  securing  a  dissolution  of  the  injunction 
may  be  recovered  but  not  for  defending  the  entire  case.15 
Attorney's  fees  may  be  recovered  when  the  injunction  was 
the  only  relief  demanded.16  When  defendant  on  filing  his 
answer  averred  he  did  not  intend  to  do  the  act  enjoined, 
and  moved  for  a  dissolution  of  the  injunction,  it  was  held 
that  it  appeared  that  he  had  not  been  damaged,  and 
though  the  motion  had  been  sustained,  he  could  not  re- 
cover on  the  bond  the  expense  incurred  by  him  in  procur- 

11  Crawford  v.  Paine,  19-172.  113;    Cedar  Rapids,  I.  F.  &  N.  R. 

12  Code,  Sec.  3467;  Van  Gorder  v.  Co.  v.  Cowan,  77-535. 
Lundy,  66-448,  and  see  Pursley  v.  is  Fountain  v.  West,  68-380. 
Hayes,  22-11;  Garretson  v.  Reeder,  14  Elwood  Mfg.   Co.   v.   Rankin, 
23-21;  Sheppard  v.  Collins,  12-570;  70-403. 

Huntington     v.     Fisher,     27-276;  IB  Behrens  v.  McKenzie,  23-333; 

Moorman  v.  Collier,  32-138;    Mor-  Langworthy   v.    McKelvey,    25-48; 

gan   v.    Long.    29-434;    Strunk    v.  Leonard  v.  Capital  Ins.  Co.,  70  N. 

Ocheltree,  11-158;  State  v.  Freder-  W.,  629;  Carroll  County  v.  Iowa  R. 

icks,  8-553;  Latham  v.  Brown,  16-  L.  Co.,  53-685. 

118;    Bessinger  v.  Dickerson,    20-  i«  Thomas  v.  McDonald,  77-301; 

260;     Rowley    v.    Jewett,     56-492;  Bullard  v.  Harkness,  83-373;  Colby 

Baker  v.  Bryan,  64-561;  Jordan  v.  v.  Meservy,  85-555;  Reece  v.  North- 

Kavanaugh,  63-152;  Wells  v.  Stem-  way,  58-187;   Ford  v.  Loomis,  62- 

back,   59-376;    Allen  v.   Pratt,   79-  586. 


§  1086.]  INJUNCTIONS.  303 

ing  the  dissolution  of  the  injunction,17  and  an  action  on 
an  injunction  bond  will  not  lie  until  after  final  hearing 
on  the  merits  and  not  on  dissolution,  on  motion  before 
final  hearing.18  In  an  action  on  an  injunction  bond  plain- 
tiff makes  a  prima  facie  case  by  showing  the  dissolution 
of  the  temporary  injunction  and  the  dismissal  of  the  or- 
iginal suit.  The  burden  is  on  defendant  to  show  that  the 
injunction  rightfully  issued.19  On  application  for  an  in- 
junction a  hearing  was  had  and  a  temporary  injunction 
granted,  afterwards  a  supplemental  petition  was  filed 
and  a  temporary  injunction  granted  ex  parte,  after  which 
defendant  filed  a  motion  to  dissolve  both  injunctions.  It 
was  held  that  the  hearing  on  the  first  petition  was  not 
equivalent  to  a  hearing  on  a  motion  to  dissolve  or  modify 
under  Code  Section  4371.20 

§  1086.  Issuance  of  the  writ. — After  the  allowance  of 
the  writ,  and  the  filing  of  a  bond  as  heretofore  stated,  the 
clerk  will  issue  it  as  follows: 

FORM  OF  WRIT  OF  INJUNCTION. 

The  State  of  Iowa. 
To  (name  of  the  defendant  or  defendants),  defendant  (or  defendants). 

Whereas  -     — ,  as  plaintiff,  has  this  day  filed  in  the  office  of  the 

clerk  of  the  district  court,  of  the  State  of  Iowa,  in  and  for county, 

a  petition  duly  sworn  to,  making and defendants  therein, 

and  praying  that  they  be  restrained  from  (state  the  acts  sought  to  be  en- 
joined). And  whereas,  the  Hon. ,  judge  of  (name  of  court),  has 

this  day  made  an  order  allowing  said  writ  of  injunction  to  issue  upon 
the  filing  of  a  bond,  with  sureties,  pursuant  to  said  order.  And  where- 
as, said  order  has  been  complied  with,  and  such  bond  filed,  and  sureties 
approved: 

Now,  therefore,  you,  the  said and ,  defendants  as  afore- 
said, are  hereby  strictly  enjoined  and  restrained  from  (here  set  out  the 
acts  sought  to  be  enjoined  at  length),  until  the  further  order  of  our  dis- 
trict court  in  the  premises.  And  this  injunction  you  must  strictly  ob- 
serve under  the  penalties  of  the  law. 

Witness  —  — ,  clerk  of  said  court,  with  the  seal  thereof  hereto  af- 
fixed, this day  of A.  D.  18—. 

[Seal.]  •  clerk- 

IT  Bank  of  Monroe  v.  Gifford,  70-  i»  Findlay  v.  Carson,  66  N.  W., 

580.  759. 

is  Bk.  of  Monroe  v.  Gifford,  65-  20  Hinkle  v.  Saddler,  66  N.  W., 

648.  766. 


304  INJUNCTIONS.  [§  1087. 

The  service  must  be  made  by  reading  the  original  to  de- 
fendants, and  giving  each  of  them  a  copy,  and  as  in  all 
cases,  the  return  should  show  the  time  and  manner  of  ser- 
vice. When  the  sheriff  is  a  party  to  the  action,  the  writ 
should  be  served  by  the  coroner  of  the  county.21 

§  1087.  Of  vacation  and  modification  of  the  injunc- 
tion.— If  the  order  is  granted  without  allowing  the  de- 
fendant to  show  cause,  he  may,  at  any  time  before  the 
next  term  of  court,  apply  to  the  judge  who  made  the  or- 
der to  vacate,  or  modify  it,  or  he  may  make  application 
to  the  judge  of  the  court  in  which  the  action  is  pending.22 
Such  application  must  be  with  notice  to  the  plaintiff 
and  upon  the  ground  that  the  order  was  improperly 
granted,  or  it  may  be  founded  on  the  answer  of  defend- 
ants and  affidavits,  and  in  the  latter  case  the  plaintiff 
may  fortify  his  application  by  counter  affidavits  and 
have  reasonable  time  therefor. 

When  relief  is  sought  by  injunction  against  fraud, 
which  is  the  gravamen  of  the  bill,  the  court  will  continue 
the  injunction,  though  the  defendant  has  fully  answered 
the  equity  set  up.23 

The  judge  must  decide  the  matter  at  once,  unless  good 
cause  is  shown  for  delay.  But  the  vacation  of  the  order 
will  not  prevent  the  action  from  proceeding,  if  anything 
be  left  to  proceed  upon,24  but  only  one  motion  to  dissolve 
or  modify  an  injunction  upon  the  whole  case  will  be  al- 
lowed.25 The  motion  to  vacate  may  be  in  the  following 
form: 

MOTION  TO  VACATE  OR  MODIFY  INJUNCTION. 

Title,     ) 
Venue.   ) 

The  defendant  in  the  above  entitled  action  moves  the  court  to  va- 
cate (or  modify,  as  the  case  may  be)  the  injunction  herein  granted,  be- 
cause: 

21  Code,  Sec.  513.  &  St.  Paul  Ry.  Co.,  58-537;  Walker 

22  Code,  Sec.  4368;  Palo  Alto  Bkg.  v.  Stone,  70-103. 
etc.,  v.  Mahar,  65-74.  2-4  Code,  Sec.  4370. 

23  Code,    Sec.   4369;    Huskins   v.  25  Code,    Sec.    4371;    Hinkle    v. 
McElroy,  62-508;  Johnston  v.  C.,  M.  Saddler,  66  N.  W.,  765. 


§  1088.]  INJUNCTIONS.  305 

1.  On  the  face  of  the  petition,  the  order  for  an  injunction  was  im- 
properly granted. 

2.  (State  any  other  ground,  or  grounds,  upon  which  the  motion  is 
based.) 

,  attorney  for  defendant. 

§  1088.  Of  dissolution  of  the  injunction. —  The  de- 
fendant may  move  to  dissolve  the  injunction  either  before 
or  after  the  filing  of  the  answer.26  Where  the  equity  of 
the  petition  is  admitted,  or  not  denied,  and  the  answer 
sets  up  new  matter  in  avoidance,  or  contains  matter 
amounting  to  a  defense,  it  is  equivalent  to  a  denial  of 
plaintiff's  equities,  and  the  injunction  should  be  con- 
tinued till  final  hearing;  and  so  it  should  where  fraud 
is  the  gravamen  of  the  petition.27  But  where  motion  to 
dissolve  is  made  after  an  answer  is  filed,  which  plainly 
and  without  evasion  denies  in  substance  all  the  facts  re- 
lied on  in  the  petition,  the  injunction  will  be  dissolved, 
unless  there  are  circumstances  making  the  case  an  excep- 
tion, as  that  irreparable  mischief  will  result  from  a  disso- 
lution.28 But  an  order  dissolving  an  injunction  will  not 
operate  to  dismiss  the  action.29  A  temporary  injunction, 
granted  by  a  judge  in  vacation,  is  not  dissolved  at  the 
next  term  by  the  failure  to  procure  an  order  making  it 
perpetual.30  The  motion  for  dissolution  should  state 
specifically  the  grounds  on  which  it  is  asked,  or  it  will  not 
be  considered.31 

The  motion  for  dissolution  may  be  in  the  following 
form: 

MOTION  TO  DISSOLVE  AN  INJUNCTION. 

Title, 
Venue. 

The  defendant  in  the  above  entitled  action  moves  the  court  to  dis- 
solve the  injunction  herein  granted,  because: 

26  Code,    Sec.     4361;     Taylor    v.          23  Taylor    v.    Dickinson,   15-483; 
Dickinson,  15-483.  Stevens  v.  Myers,  11-183;  Anderson 

27  Fargo  v.  Ames,  45-494;  Shriek-  v.  Reed,  Id.  177;  Russell  v.  Wilson, 
er  v.  Field,  9-366;  Judd  v.  Hatch,  37-377. 

31-491;    Huskins   v.    McElroy,    62-          29  Massie      v.      Mann,      17-131; 

508;     Hayes    v.    Billings,    69-387;  Waters  v.  Fredericks,  11-181;  Rus- 

Stewart  v.  Johnson,  44-435;  Walk-  sell  v.  Wilson,  37-377. 
er  v.  Stone,  70-103;   Burlington,  C.          so  Curtis  v.  Crane,  38-459. 
R.  &  N.  R.  Co.  v.  Dey,  82-312.  si  Hall  v.  Grouse,  14-487. 

Vol.  H—20 


306  INJUXCTIOXS.  [§  1089. 

1.  The  answer  of  the  defendant  plainly  and  without  evasion  denies 
all  the  facts  stated  in  the  petition. 

2.  (State  any  other  ground,  or  grounds,  upon  which  the  motion  is 
based.) 

,  attorney  for  defendant. 

The  case  when  at  issue  stands  for  trial  as  do  other 
cases  of  the  same  kind,  and,  if  possible,  the  entire  case 
will  be  disposed  of  on  the  trial  and  the  rights  of  all  the 
parties  determined. 

§  1089.     Relating   to  pleading  and  practice. — The 

practice  with  reference  to  the  hearing  of  an  application 
for  temporary  injunction  has  not  been,  in  some  respects, 
uniform,  and  an  indiscriminate  use  of  affidavits  is  often 
permitted.  While  it  is  conceded  that,  from  the  circum- 
stances, liberality  should  be  allowed  the  parties,  yet  it  is 
certain  that  on  such  hearings  there  must  be  an  end  to 
the  right  to  use  affidavits  and  counter  affidavits,  and  that 
it  must  be  a  rare  case  which  will  justify  the  court  or 
judge  in  allowing  greater  liberality  in  the  matter  of 
affidavits  than  the  statute  expressly  provides. 

Affidavits  used  on  a  hearing  of  an  application  for  a 
temporary  injunction  are  no  part  of  the  record,  and  will 
not  be  considered  on  appeal  from  the  ruling  unless  they 
are  preserved  by  bill  of  exceptions  or  certificate  of  the 
judge,  and  filed  in  the  clerk's  office.32  A  former  acquittal 
upon  a  charge  of  the  crime  of  selling  intoxicating  liquors 
contrary  to  law  is  not  an  adjudication  that  the  party  is 
not  maintaining  a  nuisance,  and  is  no  bar  to  the  issuance 
of  an  injunction  to  restrain  him  from  continuing  such 
nuisance.33  A  cause  of  action  to  enjoin  a  nuisance  caused 
by  the  unlawful  sale  of  intoxicating  liquors  is  not  re- 
movable to  the  United  States  circuit  court — there  is  no 
federal  question  involved.34 

The  plaintiff  in  an  injunction  case  can  not,  for  the  first 
time,  in  the  supreme  court,  make  the  objection  that  he 
had  no  opportunity  to  controvert  the  affidavits  made  in 

«2  Hart  v.  Foley,  67-407.  3*  Lemon  v.  Wagner,  68-660. 

88  Martin  v.  Blattner,  68-286. 


§  1090.]  INJUNCTIONS.  307 

support  of  the  answer  on  which  a  dissolution  was  grant- 
ed.35 Under  section  4368  of  code,  the  defendant  may,  on 
answer  alone,  without  affidavits,  move  for  vacation  of 
the  injunction,  in  which  case  the  plaintiff  may  support 
his  petition  by  affidavits.36 

It  is  held  that  when  petitions  for  the  enjoining  and 
abating  of  nuisances  kept  in  violation  of  the  prohibitory 
liquor  laws,  contained  the  necessary  averments  and  no 
answers  were  filed,  the  averments  of  the  petition  were 
admitted  by  operation  of  law,  and  no  evidence  was 
necessary.87 

§  1090.  Violation  of  injunction,  how  punished.— 
Any  judge  of  the  supreme,  district  or  superior  court  be- 
ing furnished  with  an  authenticated  copy  of  the  injunc- 
tion and  with  satisfactory  proof  that  such  injunction  has 
been  violated,  must  issue  his  precept  to  the  sheriff  of  the 
county  wherein  the  violation  occurred,  or  to  any  other 
sheriff,  naming  him,  more  convenient  to  all  parties  con- 
cerned, directing  him  to  attach  the  defendant  and  bring 
him  forthwith  before  the  same  or  some  other  judge,  at 
the  place  stated  in  said  precept.38  Said  precept  may  be 
in  the  following  form: 

FORM  OF  PRECEPT  FOR  VIOLATION  OF  INJUNCTION. 

Title,     ) 
Venue,    f 

The  State  of  Iowa. 
To  the  sheriff  of (or  to  some  other  sheriff  named),  greeting: 

Satisfactory  proof  having  been  furnished  to  the  undersigned,  judge 
of  the  (name  of  the  court  of  which  he  is  judge),  by  the  plaintiff  in  the 
above  entitled  action,  that  the  writ  of  injunction  therein  issued  and 
served  has  been  violated  by  the  defendant  (or  defendants,  naming 
them). 

You  are,  therefore,  hereby  commanded  and  directed  to  attach  the 

SB  Casey  v.  Ind.  Dist.  of  Nutt,  64-  ss  Code,  Sec.  4372;  State  v.  Myers, 

659.  44-580;  McLane  v.  Granger,  74-152; 

se  Palo  Alto  Bkg.,  etc.,  v.  Mahar,  Fisher  v.  Cass  County  Dist.  Court, 

65-74.  75-232;   Silvers  v.  Traverse,  82-52; 

37  Bloomer    v.    Glendy,    70-757;  Lindsay  v.  Clayton  Dist.  Court,  75- 

Code,  Sec.  3622;  Alexander  v.  Do-  509. 
ran,  13-283;  Singer  Mfg.  Co.  v.  Bil- 
lings, 39-347. 


308  INJUNCTIONS.  [§  1090. . 

said  defendant  (or  defendants),  and  bring  him  (or  them)  before  me  (or 

some  other  judge,  naming  him),  on  the day  of A.  D.  18 — , 

at ,  county  of ,  State  of  Iowa. 

,  judge,  etc. 

When  produced  he  may  file  his  affidavit  denying  or 
sufficiently  excusing  the  contempt  charged,  and  the 
court  may  hear  other  evidence,  oral  or  by  affidavit,  and  if 
satisfied  that  the  defendant  is  not  guilty  or  that  the  con- 
tempt is  sufficiently  excused,  he  will  be  released  and  all 
affidavits  will  be  filed  with  the  clerk  of  the  court  for  pres- 
ervation.39 And  in  proceedings  for  the  violation  of  an 
injunction  the  court  will  take  judicial  notice  of  its  own 
order  granting  the  injunction.40 

If  the  defendant  is  not  so  released,  the  judge  may  re- 
quire him  to  give  bond  with  surety  for  his  appearance  at 
the  next  term  of  court,  and  also  for  his  future  obedience 
to  the  injunction,  which  bond  should  be  filed  with  the 
clerk.41  Said  bond  may  be  in  the  following  form: 

FORM  OF  BOND  FOR  APPEARANCE  OF  DEFENDANTS. 

Know  all  men  by  these  presents,  that  we, and princi- 
pals and  surety,  are  held  and  firmly  bound  unto  the  State  of 

Iowa,  in  the  penal  sum  of dollars,  lawful  money  of  the  United 

States,  well  and  truly  to  be  paid. 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  said 

an(j have  this  day  been  convicted  of  a  contempt  of  court, 

before  the  Hon.  —  — ,  judge  of  the  (name  the  proper  court),  for  violat- 
ing and  disobeying  an  injunction  issued  from  the  district  court  of  the 

State  of  Iowa,  in  and  for county,  in  an  action  wherein  - 

plaintiff,  and  the  said and are  defendants.    Now,  if  the  said 

.  a'nd ,  and  each  of  them,  shall  appear  at  the  next  term  of 

said  district  court  and  abide  the  order  of  said  court  in  the  premises,  and 
shall  in  the  meantime  obey  the  said  injunction,  then  this  obligation  to 
be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Dated  this day  of A.  D.  18 — . 

(Add  justification.) 

If  defendant  fails  to  give  security,  he  may  be  com- 
mitted to  the  jail  of  the  county  where  the  proceedings 
are  pending  until  the  next  term  of  the  court,  unless  he 

so  Code,  Sec,  4373.  41  Code,  Sec.  4374. 

40  Jordan  v.   Circuit   Court,   69- 
177. 


§  1090.]  INJUNCTIONS.  309 

gives  the  bond  in  the  meantime.42    The  warrant  of  com- 
mitment may  be  in  the  following  form: 

FORM  OF  WARRANT  OF  COMMITMENT. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas,  has  this  day  been  brought  before  the  undersigned, 

sole  judge  of  the  (name  of  the  court,  or  judge  of  the  supreme  court), 
upon  the  precept  of  (name  of  judge  who  issued  the  precept,  or  "on  my 

precept,")  issued  on  the day  of A.  D.  18 — ,  charged  with 

having  violated  an  injunction  issued  from  the  (name  the  court  from 

whence  the  writ  issued)  on  the day  of A.  D.  18 — ,  in  an 

action  pending  in  said  court,  wherein  is  plaintiff,  and  the  said 

and are  defendants. 

And  whereas,  the  said ,  on  being  produced  before  me,  failed 

to  file   his    affidavit  denying  or    sufficiently   excusing    the   contempt 

charged,  and  the  said having  been  required  by  me  to  give  a  bond 

in  the  sum  of dollars,  with  surety,  for  his  appearance  at  the  next 

term  of  the  court  in  which  said  action  is  pending,  and  for  his  future 
obedience  to  said  injunction,  which  he  has  failed  to  do. 

Therefore,  you  are  hereby  commanded  to  take  the  body  of  the  said 

into  your  custody,  and  him  safely  keep  in  the  county  jail  of 

county,  Iowa,  until  the  next  term  of  the  district  court  therein,  or  until 
he  is  otherwise  legally  discharged. 

Witness  my  hand  this day  of A.  D.  18 — . 

,  judge,  etc. 

If  the  bond  is  given,  the  court  at  the  next  term  will  act 
on  the  case  and  punish  the  contempt,  in  case  it  is  found 
to  have  been  committed,  in  the  -usual  manner.43  But  in 
some  cases  the  court  issuing  the  injunction  may  in  the 
same  proceeding  render  a  judgment  against  the  one  vio- 
lating it.44  After  a  preliminary  injunction  has  been 
granted  restraining  the  payment  of  money  by  public  offi- 
cers, the  fact  that  payment  is  made  in  violation  of  the  in- 
junction before  the  final  hearing,  will  not  affect  the  rights 
of  the  plaintiff  on  such  hearing.45  See  chapter  on  con- 
tempts. For  the  punishment  for  violation  of  injunctions 
in  liquor  cases  consult  the  cases  cited  below.46 

42  Code,  Sec.  4375.  Fisher  v.  Cass  County  Dist.  Court, 

« Code,  Sec.  4376.  75-232;     State     v.     Voss,     80-467; 

**Teager    v.     Landsley,    69-725;  Cotant  v.  Hobson,  67  N.  W.,  255; 

Hager  v.  Adams,  70-746.  Silvers  v.  Traverse,  82-52;  McLane 

«  Cartham  v.  Lang,  69-384.  v.  Granger,  74-152;  Currier  v.  Muel- 

46Qoetz    v.     Stutsman,     73-693;  ler,  79-316;  State  v.  District  Court, 


310  INJUNCTIONS.  [  §  1091. 

§  1091.  Of  amendments. — The  liberal  provisions  of 
the  code  in  relation  to  the  subject  of  amendments  are,  so 
far  as  reasonable  and  proper,  applicable  to  injunction 
suits;47  and  the  power  of  the  court,  or  judge,  to  permit 
amendments  is  fully  treated  of  in  the  chapter  on  that;  sub- 
ject48 

84-167;    Lindsay  v.  Clayton  Dist.  « Des  Moines  Nav.  &  R.  Co.  r. 

Court,  75-509;  McG-lasson  v.  John-  Carpenter,  27-487. 

son,  86-477;  Lindsay  v.  Hatch,  85-  *»  Chapter  on  Amendments. 

332. 


CHAPTER  LXVII. 

OF  LANDLORD  AND  TENANT. 

Sec.  1092.  To  -what  the  lien  of  the  landlord  attaches. 

1093.  When  he  has  no  lien. 

1094.  Concerning  the  priority  of  the  lien. 

1095.  When  the  lien  attaches,  and  its  continuance. 

1096.  Of  waiver  or  loss  of  the  lien. 

1097.  Of  injunctions  against  tenants. 

1098.  Of  proceedings  against  third  persons  to  recover  for  property 

sold  them  by  tenants,  and  of  actions  for  injuries  to  the 
crop. 

1099.  Cases  in  which  the  landlord  may  assert  his  lien. 

1100.  Of  the  remedy 

1101.  Of  payments  by  the  mortgagee  of  rent. 

1102.  Of  enforcement  of  the  lien. 

1103.  Of  the  petition. 

1104.  Of  the  attachment. 

1105.  Of  the  levy  of  the  writ. 

1106.  Of  pleading,  etc. 

Section  1092.  To  what  the  lien  of  the  landlord 
attaches. — A  landlord  has  a  lien  for  his  rent  upon  all 
crops  grown  upon  the  demised  premises,  and  upon  any 
other  personal  property  of  the  tenant  which  has  been 
used  or  kept  on  the  premises  during  the  term,  and  not 
exempt  from  execution;1  and  it  extends  to  crops  grown 
by  a  sub-tenant,2  and  to  an  agreement  for  mining  coal, 
so  as  to  create  the  relation  of  landlord  and  tenant  and 
give  a  right  to  a  landlord's  lien.3 

The  lien  attaches  not  only  in  cases  of  agricultural 
lands,  but  also  in  case  of  houses  and  store  rooms  in  cities 
and  towns;4  and  it  attaches  to  property  kept  upon  the 

iCode,  Sec.  2992;    Thompson  v.         »  Lacey  v.  Newcomb,  63  N.  W., 
Anderson,    86-703;     Thompson    v.      704. 
Anderson,  63  N.  W.,  355.  *  Grant  v.  Whitewell,  9-152. 

2  Houghton  v.Bauer,  70-314;  Fos- 
ter v.  Reid,  78-205. 

311 


312  LANDLOED   AND   TENANT.  [§  1093. 

premises  for  the  purpose  of  sale  to  customers,  though 
it  is  not  used  thereon  for  any  other  purpose.5  So  it  at- 
taches to  crops  grown  on  land  rented  on  shares,  the 
same  as  if  the  rent  had  been  payable  in  money,  and  if  in 
such  cases  the  lessee  fails  to  gather  and  deliver  to  the 
lessor  his  share  of  the  crop,  and  the  landlord  is  com- 
pelled to  gather  it  himself,  he  has  a  lien  for  the  value  of 
such  labor,  as  a  part  of  the  rent  the  tenant  agreed  to 
pay.6  So  it  attaches  to  growing  crops.7 

So  it  has  been  held  to  attach  to  a  span  of  horses  owned 
by  the  head  of  a  family,  and  being  the  only  horses  he  had, 
or  used,  and  which  were  kept  for  use,  and  used,  on  the 
demised  premises.8 

The  landlord's  lien  attaches  to  crops  raised  on  the  de- 
mised premises,  and  is  not  divested  by  their  sale  by  the 
tenant9  The  lien  extends  to  all  personal  property  used 
on  the  premises  and  which  belongs  to  the  tenant  and  is 
not  exempt  from  execution.10  And  when  the  landlord 
attaches  and  removes  the  tenant's  property  for  rent  due, 
the  property  is  also  liable  for  rent  accruing  after  such 
attachment  and  removal.11 

§  1093.  When  he  has  no  lien. — It  is  said  that  no 
lien  attaches  as  against  one  who  purchases  a  cow  in  good 
faith  from  a  tenant,  even  though  she  had  been  used  on 
the  farm,  it  not  being  shown  that  she  was  purchased  on 
the  farm;12  and  as  to  stock  kept  for  agricultural  pur- 
poses, if  the  landlord  suffers  it  to  be  sold,  and  it  is  sold 
bona  fide,  the  purchaser  will  not  be  affected  by  a  lien 
afterward  established.13  It  was  held  not  to  attach  to 
horses  and  wagons  used  by  a  grocer  in  connection  with 

5  Grant  v.  Whitewell,  9-152.  Hammer,  68  N.  W.,  564;  Kramer  v. 

e  Secrest  v.  Stivers,  35-580.  Adams,  63  N.  W.,  180;  Neeb  v.  Mc- 

7  Rotzler  v.  Rotzler,  46-189;  Fos-  Millan,  68  N.  W.,  438. 

ter  v.  Reid,  78-205.  10  Wells  v.  Sequin,  14-143. 

s  Richardson  v.  Petersen,  58-724.  n  Garner  v.  Cutting,  32-547,  and 

»  Holden  v.  Cox,  60-449;   Atkins  cases  cited.       But  see  Code,   Sec. 

v.   Womeldorf,   53-150;    Wright   v.  2992. 

Dickey  Co.,  83-464;  Evans  v.  Col-  12  Nesbitt  v.  Bartlett,  14-485;   see 

lins,  62  N.  W.,  810;    Blake  v.  Coun-  Grant  v.  Whitewell,  9-152. 

selman,  63  N.  W.,  679;    Frorer  v.  is  Nesbitt  v.  Bartlett,  14-485. 


§  1094.]  LANDLOKD   AND   TENANT.  313 

his  business,  but  not  kept  on  the  premises  leased  for  his 
grocery.14 

It  will  not  lie  in  favor  of  the  landlord  who  proceeds 
under  the  general  attachment  law.15  Nor  can  he  claim 
a  lien  as  against  a  mortgage  when  he  did  not,  at  the  time 
the  mortgage  was  executed,  have  a  subsisting  contract 
by  virtue  of  which  the  rent  claimed  was  to  accrue.16 
Nor  will  it  lie  for  damages  for  failure  to  till  land,  or  by 
reason  of  breaches  of  contract  in  the  agreement  of  lease, 
which  are  not  connected  with  the  demise  of  the  land. 
It  can  only  lie  for  rent  due.17 

Nor  will  it  attach,  it  seems,  to  goods  sold  before  the 
lien  is  enforced,  where  selling  goods  was  the  business 
for  which  the  premises  under  the  lien  were  used.18 

The  landlord  has  no  lien  as  against  a  mortgagee  of 
personal  property,  when  the  mortgage  is  duly  recorded 
before  the  property  is  brought  on  to,  or  used  on  the  de- 
mised premises,  even  though  the  mortgagee  may  know 
that  the  property  is  being  used  upon  leased  premises.19 
The  lessor  of  a  hotel  has  no  lien  for  rent  on  property 
owned  by  the  lessee's  wife,  though  it  is  used  in  furnish- 
ing the  hotel  during  the  term  of  the  lease.20  A  wife's 
property  cannot  be  taken  under  a  landlord's  attachment 
for  rent  not  accrued,  under  a  lease  of  property  to  the 
husband.21 

§  1094.  Concerning  the  priority  of  the  lien. — The 
lien  of  a  mortgagee  of  chattels  whose  mortgage  is  duly 
recorded,  is  prior  to  that  of  a  landlord  on  whose  prem- 
ises they  may  be  afterward  used  by  the  mortgagor;  al- 
though the  mortgagee  may  have  knowledge  that  such 
chattels  were  being  used  upon  the  leased  premises,22 
and  the  landlord's  lien  on  growing  crops  of  a  tenant  who 
is  cultivating  the  land  on  shares,  even  though  the  rent 

i*  Van  Patten  v.  Leonard,  55-520.  10  Jarchow    v.    Pickens,    51-381; 

is  Clark  v.  Haynes,  57-96.  Rand  v.  Barrett,  66-731. 

is  Thorpe  v.  Fowler,  57-541.  20  Perry    v.    Waggoner,     68-403; 

IT  Merrit  v.  Fisher,  19-354.  see  Jarchow  v.  Pickens,  51-381. 

is  Grant  v.  Whitewell,  9-152;  see  21  Shurz  v.  McMenamy,  82-432. 

Nesbitt  v.  Bartlett,  14-485.  22  Jarchow   v.    Pickens,    51-381; 

Rand  v.  Barrett,  66-731. 


LANDLORD   AND    TENANT.  [§  1094. 

share  has  not  yet  been  set  apart  to  the  landlord,  can  not 
be  divested  by  a  creditor  of  the  tenant  levying  an  at- 
tachment thereon;23  and  where,  during  the  term  of  a 
lease,  another  lease  was  made  between  the  same  parties 
covering  the  same  property,  it  was  held  that  while  the 
execution  of  the  second  lease  operated  as  a  cancellation 
of  the  first  as  between  the  parties,  yet  the  landlord's  lien 
for  rent  under  the  second  lease  upon  property  kept  upon 
the  premises  at  the  time  of  the  change,  would  not  be 
postponed  by  reason  thereof  to  that  of  a  chattel  mort- 
gage made  by  the  lessee  prior  to  such  change,  and  of 
which  the  lessor  had  no  knowledge  at  the  time.24 

So  it  is  said  that  when  a  farm  tenant  who  was  the 
head  of  a  family,  kept  a  span  of  horses  upon  the  leased 
premises  for  use,  and  not  for  sale,  and  they  were  the 
only  horses  he  owned  or  used,  and  the  lease  was  not  re- 
corded, nor  was  there  any  lien  or  incumbrance  on  the 
horses  of  record,  and  prior  to  the  maturity  of  any  rent 
the  tenant  traded  the  horres  for  another  span  to  a  per- 
son who  had  no  actual  knowledge  of  the  lease,  or  where 
the  horses  were  kept,  and  subsequently  absconded  with 
all  his  property,  leaving  the  rent  unpaid,  that  the  horses 
were  subject  to  the  landlord's  lien  for  rent.  That  the 
sale  of  them  did  not  affect  the  lien,  but  was  subject  to  it, 
and  that,  as  the  statute  which  created  the  lien  provides 
no  protection  in  favor  of  persons  having  no  notice  there- 
of, the  property  subject  to  the  lien  can  not  be  transferred 
free  from  the  lien.25 

So  a  landlord  may  follow  the  crops  raised  on  the  prem- 
ises and  on  which  he  has  a  lien,  into  the  hands  of  one 
who  buys  them;26  but  a  landlord  can  not  have  a  lien 
prior  to  that  of  a  mortgage,  when,  at  the  time  the  mort- 
gage was  executed,  he  did  not  have  a  subsisting  contract 
by  virtue  of  which  rent  was  to  accrue;27  nor  will  a  land- 

23  Atkins  v.  Womeldorf,  53-150.  v.  Collins,  62  N.  W.,  810;  Blake  v. 

2*  Rollins  v.  Proctor,  56-326.  Counselman,     63-679;     Frorer     v. 

25  Richardson    v.    Petersen,    58-  Hammer,  68  N.  W.,  564;  Kramer  v. 

724.  Adams,    63   N.    W.,   180;    Neeb    v. 

zsHolden  v.   Cox,  60-249;    Rich-  McMillan,  68  N.  W.,  438. 
ardson  v.  Petersen,  58-724;  Evans          ZT  Thorpe  v.  Fowler,  57-541. 


§§  1095,  1096.]  LANDLORD   AND   TENANT.  315 

lord's  lien  be  prior  upon  goods  used  in  a  hotel  to  one 
created  by  chattel  mortgage  on  them  prior  to  the  be- 
ginning of  the  landlord's  lease.28  So  he  has  no  lien  on 
property  of  the  wife  which  is  used  on  the  demised  prem- 
ises.29 A  provision  in  a  lease  creating  a  lien  on  property 
exempt  from  execution  is  in  its  nature  and  effect  a  mort- 
gage and  as  such  must  be  recorded  to  be  valid  against 
existing  creditors  or  subsequent  purchasers  without  no- 
tice.30 

§  1095.  When  the  lien  attaches,  and  its  contin- 
uance.— The  lien  attaches  at  the  commencement  of  the 
term  or  as  soon  as  the  property  is  brought  on  the  prem- 
ises,31 for  all  rent  to  become  due,  or  that  will  accrue  dur- 
ing the  entire  term.32 

It  continues  for  the  period  of  one  year  after  a  year's 
rent,  or  the  rent  of  a  shorter  period  claimed,  falls  due; 
but  it  does  not,  in  any  case,  continue  more  than  six 
months  after  the  expiration  of  the  term.33  If  a  stock  of 
goods  or  merchandise  or  a  part  thereof,  subject  to  a  land- 
lord's lien,  is  sold  under  judicial  process,  order  of  court, 
or  by  an  assignee  under  a  general  assignment  for  the 
benefit  of  creditors,  the  lien  of  the  landlord  will  not  be 
enforcible  against  the  stock,  or  any  of  it,  except  for  rent 
due  for  the  term  already  expired,  and  for  rent  to  be 
paid  for  use  of  demised  premises  for  a  period  not  ex- 
ceeding six  months  after  the  date  of  the  sale,  and  this  is 
so  regardless  of  any  agreement  that  the  parties  may 
make.34 

§  1096.    Of  waiver  or  loss  of  the  lien. — It  can  not 

be  waived  or  lost  by  an  unauthorized  sale  by  the  tenant 
of  property  kept  for  use  and  not  for  sale.35  So  the  tak- 

zs  Rand  v.  Barrett,  66-731;  Man-  Greenbaum,  56-211;  Doane  v.  Gar- 

hattan  Trust  Co.  v.  S.  C.  &  N.  R.  retson,  24-351. 

Co.,  68  Fed.  R.,  72.  32  Garner     v.     Cutting,     32-547; 

2»  Perry  v.  Waggoner,  68-403.  Grant  v.  Whitewell,  9-152;  Carpen- 

so  Sioux    Valley    State    Bk.    v.  ter  v.  Gillespie,  10-592;   Martin  v. 

Honnold,  85-352.  Stearns,    52-345:     Gilbert,    etc.,    v. 

si  Garner     v.     Cutting,     32-547;  Greenbaum,  56-211. 

Grant  v.  White-well,  9-152;  Carpen-  as  Code.  Sec.  2992. 

ter  v.  GiUespie,  10-592;    Martin  v.  34  Code,  Sec.  2992. 

Stearns,    52-345;    Gilbert,    etc.,   v.  ^  Holden  v.  Cox,  60-447;    Rich- 


316  LANDLOED   AND    TEXAXT.  [§  1097. 

ing  of  a  note  for  rent  and  the  indorsement  of  it  to  an- 
other, does  not  prevent  the  landlord,  who  is  compelled 
to  take  it  up  as  indorser,  from  enforcing  his  lien  for  rent 
for  which  the  note  was  given;36  but  proceeding  under 
the  general  attachment  law  for  rent  not  due  will  be  a 
waiver  of  his  lien.37  The  lien  being  a  statutory  one  and 
for  the  benefit  of  the  landlord,  he  may  waive  it,  and  he 
is  presumed  to  waive  his  lien  as  to  sales  made  in  the 
ordinary  course  of  trade.38  But  taking  a  chattel  mort- 
gage, which,  on  account  of  a  failure  to  record,  he  can 
not  enforce,  is  not  a  waiver  of  his  lien.39  But  the  taking 
of  security  or  of  a  mortgage  while  not  conclusive  as  a 
waiver  is  a  fact  to  be  considered  in  determining  whether 
the  lien  has  been  waived.40  If  a  landlord  proceeds  un- 
der the  general  attachment  law  for  rent  not  due,  he  will 
be  confined  to  the  remedy  there  given.41  As  to  other 
cases  of  waiver.42 

§  1097.  Of  injunctions  against  tenants. — The  land- 
lord may  have  an  injunction  against  the  tenant  or  his 
assignee  to  prevent  a  sale  and  removal  of  property  on 
which  he  has  a  lien,  from  the  demised  premises.43  But 
a  landlord  who  has  a  lien  on  growing  crops,  for  rent  due 
and  unpaid,  and  which  may  be  enforced  by  attachment, 
can  not  have  an  injunction  to  restrain  the  tenant  from 
removing  them  from  the  demised  premises.44  Where  a 
mercantile  firm  was  occupying  a  leased  store  room,  and 
the  firm  was  dissolved  by  the  death  of  one  of  the  part- 
ners, the  landlord  had  a  lien  for  rent  which  would  accrue 
under  the  lease,  but  the  surviving  partner  had  a  right 
to  close  out  the  business  in  such  a  manner  as  he  might 

ardson  v.  Petersen,  58-724,  and  « Bergman  v.  Guthrie,  89-290 ; 

cases  cited  under  section  relating  Jno.  V.  Farwell  &  Co.  v.  Stick,  61 

to  priority  of  lien.  N.  W.,  565,  and  64  N.  W.,  614; 

sa  Farwell  v.  Grier,  38-83,  and  Lacey  v.  Newcomb,  63  N.  W.,  704; 

see  German  Bk.  v.  Schloth,  59-316.  Mingus  v.  Daugherty,  87-56;  Smith 

37  Clark  v.  Haynes,  57-96.  v.  Dayton,  62  N.  W.,  650;   Crill  v. 

ss  Grant  v.  Whitewell,  9-152.  Jeffrey,  64  N.  W.,  625. 

39  Pitkin  v.  Fletcher,  47-53.  43  Garner  v.  Cutting,  32-547,  and 

40  Rollins     v.     Proctor,     56-326;  cases    cited;     Carson    v.     Electric 
Smith  v.  Dayton,  62  N.  W.,  650.  Light  &  Power  Co.,  85-44. 

«  Clark  v.  Haynes,  57-96.  **  Rotzler  v.  Rotzler,  46-189. 


§  1098.]  LANDLORD   AND   TENANT.  317 

deem  best  for  the  interests  of  the  creditors,  the  exec- 
utors of  the  deceased  partner  ard  himself;  and  in  such 
case  the  landlord  could  not  have  an  injunction  to  compel 
the  surviving  partner  to  hold  the  goods  till  the  expira- 
tion of  the  term  of  the  lease,  or  to  sell  them  in  the  usual 
course  of  trade,  and  especially  so  when  the  surviving 
partner  was  a  man  of  ample  means.45  When  it  appears 
that  the  relation  of  landlord  and  tenant  does  not  exist, 
an  injunction  will  not  lie  to  prevent  an  occupant  of  a 
store  room  from  recovering  his  goods.46  . 

§  1098.  Of  proceedings  against  third  persons  to 
recover  for  property  sold  them  by  tenants  and  of  ac- 
tions for  injuries  to  the  crop. — A  landlord  has  no  such 
interest  in  the  growing  crops  of  his  tenant,  that  he  can 
maintain  an  action  against  a  third  person  who  injures 
them.47 

When  the  crops  of  the  tenant  on  which  the  landlord 
has  a  lien  are  sold  by  the  tenant  and  the  proceeds  taken 
by  a  third  party,  an  action  at  law  will  lie  against  him  for 
damages  for  the  wrongful  conversion  of  the  property; 
and  if  such  action  is  brought  in  equity  it  should  be 
changed  into  the  proper  proceedings  and  transferred  to 
the  proper  docket.  Error  as  to  the  kind  of  proceedings 
will  not  abate  the  action.48  If  the  purchaser  of  the  crop 
on  which  such  lien  has  attached  has  consumed  it,  an 
action  of  damages  will  lie  against  him  for  the  value.49 
A  failure  to  bring  an  action  within  six  months  after  the 
expiration  of  the  term  against  a  purchaser  from  a  ten- 
ant of  property,  subject  to  the  lien,  will  defeat  the  ac- 
tion.50 If,  however,  he  assents  to  the  sale  of  lien  cov- 
ered grain  to  an  innocent  purchaser,  he  will  not  be  per- 
mitted to  enforce  his  lien  thereon.51 

45  Milner  v.  Cooper,  65-190.  *»  Holden  v.  Cox,  60-  449;  Nickel- 

46  Stibbs  v.  Agner,  65-318.  son   v.   Negley,   71-546;    Evans   v. 
*7  Drake  v.  Chicago,  R.  I.  &  P.      Collins,  62  N.   W.,   810;    Blake   v. 

Ry.  Co.,  70-59;  Townsend  v.  Isen-  Counselman,  63  N.  W.,  679;  Frorer 

berger,  45-670;  see  Howard  Coun-  v.  Hammer,  68  N.  W.,  564;  Kramer 

ty  v.  Kyte  et  al.,  69-309,  and  cases  v.  Adams,  63  N.  W.,  180. 
cited.  50  Nickelson  v.  Negley,  71-546. 

48  Scallan   v.    Wait,    64-707;    see          "  Wright  v.  Dickey  Co.,  83-464. 
Holden  v.  Cox,  60-449,  and  Rich- 
ardson v.  Petersen,  58-724. 


318  LANDLORD   AND   TENANT.  [§§  1099-1102. 

§  1099.  Cases  in  which  the  landlord  may  assert 
his  lien. — The  landlord  may  assert  his  lien  for  rent 
when  the  tenant's  property  has  been  taken  by  one  claim- 
ing to  be  owner  in  an  action  of  replevin.52  A  creditor  of 
a  tenant  who  is  cultivating  land  upon  shares  can  not,  by 
the  levy  of  an  attachment  upon  the  growing  crop  of  the 
tenant,  deprive  the  landlord  of  his  lien  thereon.53 

§  1100.  Of  the  remedy. — The  lien  given  the  land- 
lord is  purely  a  statutory  remedy  and  will  be  strictly 
construed.  It  attaches  for  rent  only  and  rent  is  a  cer- 
tain profit,  either  in  money,  provisions,  chattels  or  labor, 
issuing  out  of  lands  and  tenements  as  return  for  their 
use,  hence  a  landlord  does  not  have  a  lien  for  damage  for 
breach  of  other  covenants  in  the  lease.54  The  landlord 
may  maintain  an  action  for  rent  due  without  asking  for 
an  attachment;55  or  he  may,  it  seems,  amend  his  petition 
and  make  the  affidavit  provided  by  the  statute  and  then 
have  his  writ.56  He  can  not  claim  a  landlord's  lien  if  he 
proceeds  under  the  general  attachment  law.57  While 
the  lien  attaches  for  the  entire  term  to  property  of  the 
tenant  brought  on  and  used  on  the  demised  premises, 
yet  it  may  not  be  enforceable  as  to  rent  not  due,  so  long 
as  the  tenant  conducts  and  carries  on  his  business  in  the 
usual  manner,  and  as  contemplated  by  the  terms  and  con- 
ditions of  the  lease.58 

§  1101.  Of  payments  by  the  mortgagee  of  rent.— 
The  mortgagee  of  goods  may,  after  being  garnished  by  a 
creditor  of  the  mortgagor,  pay  over  out  of  the  surplus  in 
his  hands  after  satisfying  the  mortgage  debt,  to  the 
landlord,  rents  accrued  for  the  use  of  the  building  in 
which  the  goods  were  kept,  and  which  was  in  arrears 
when  the  mortgagee  took  posession.59 

§1102.  Of  enforcement  of  the  lien. — The  lien  may 
be  effected  or  enforced  by  the  commencement  of  an  ac- 

62  Edwards  v.  Cottrell,  43-194.  57  Clark   v.   Haynes,   57-96;    see 

as  Atkins  v.  Womeldorf ,  53-150.  Sec.  1096  and  cases  cited. 

54  Merrit  v.  Fisher,  19-354.  58  Gilbert  v.  Greenbaum,  56-211. 

55  Bartlett  v.  Gaines,  11-95.  °o  Doane  v.  Garretson,  24-351. 

56  Bartlett  v.  Gaines,  11-95. 


§  1103.]  LANDLORD   AXD   TEXAXT.  319 

tion  within  the  time  of  its  continuance  for  the  rent  alone, 
in  which  action  the  landlord  will  be  entitled  to  a 
writ  of  attachment,  upon  filing  with  the  proper  clerk  a 
verified  petition  stating  that  the  action  is  commenced  to 
recover  rent  accrued  within  one  year  previous  thereto 
upon  premises  described  in  the  petition.  And  the  pro- 
cedure will  be  the  same  as  in  other  cases  of  attachment, 
except  that  no  bond  will  be  required.  If  a  lien  for  rent 
is  given  in  a  written  lease  or  other  instrument,  upon  addi- 
tional property,  it  may  be  enforced  in  the  same  manner 
and  in  the  same  action.60  When  the  land  is  leased  on  the 
condition  that  the  third  of  the  crop  shall  be  delivered  to 
the  owner  in  payment  of  rent,  the  owner  acquires  no  title 
to  a  part  of  the  crop  reserved  for  the  rent  until  it  is  set 
apart  for  him  by  the  tenant.61  Oops  of  a  sub-tenant  can 
be  appropriated  under  a  landlord's  attachment  in  an  or- 
dinary action  against  the  original  tenant  for  rent62  The 
action  for  malicious  prosecution  in  wrongfully  suing  out 
a  landlord's  attachment  can  not  be  interposed  as  a 
.counter  claim  in  an  action  in  which  the  attachment  is 
sought.63 

§  1103.     Of  the  petition, — The  petition  to  enforce   a 
landlord's  lien  may  be  in  the  following  form: 

FORM  OF  PETITION  FOR  LANDLORD'S  LIEN. 

Title, 
Venue. 

The  plaintiff  states  that  on  or  about  the day  of ,  18 — , 

by  an  (oral  or  written)  agreement  he  leased  to  the  defendant  for  the 
term  of  years  from  the  day  of ,  18 — ,  the  following  de- 
scribed premises  situated  in  the  county  of and  State  of  Iowa,  to 

wit:  (Here  describe  premises.) 

That  the  said  defendant  promised  and  agreed  to  pay  as  rent  for  said 
premises  the  said  sum  of  -  -  dollars,  payable  as  follows,  to  wit: 
(Here  set  out  how  and  when  rent  is  payable.) 

That  the  said  defendant  entered  upon  and  continued  in  possession  of 
said  premises  during  the  term  of  said  lease,  and  that  there  is  now  due 

™Code,     Sec.     2993;     Grant     v.  461;  Atkins  v.  Womeldorf,  53-150; 

Whitewell,     9-152;     Nickelson     v.  Howard  County  v.  Kyte,  69-309. 
Negley,  71-546.  «2  Houghton  v.  Bauer,  70-314. 

si  Townsend  et  al.  v.  Isenberger,  es  Youngerman   v.    Long,    63   N. 

45-670;  Rees  v.  Baker,  4  G.  Greene,  W.,  674. 


320  LANDLOED   AND    TENANT.  [§§  1104,  1105. 

and  owing  from  said  defendant  as  rent  for  said  premises  the  sum  of 
dollars. 

That  this  action  is  commenced  to  recover  rent  accrued  within  one 
year  previous  thereto,  upon  the  premises  heretofore  described. 

Wherefore  the  plaintiff  demands  judgment  for  the  sum  of 

dollars,  with  interest  thereon  at  the  rate  of per  cent,  per  annum 

from  the day  of ,  18 — ,  and  costs  of  suit,%and  that  a  writ  of 

attachment  issue  for  the  enforcement  of  his  lien. 


attorney  for  plaintiff. 


(If  the  agreement  is  alleged  to  be  in  writing  a  copy  of  it  should  be 
attached  to  the  petition,  and  made  a  part  of  It.) 
(Add  verification.) 

§    1104.     Of  the  attachment.— The    landlord's    at- 
tachment may  be  in  the  following  form: 

FORM  OF  LANDLORD'S  ATTACHMENT. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas has  this  day  filed  his  verified  petition  in  the  office  of 

the  clerk  of  the  district  court  in  and  for county,  Iowa,  claiming  of 

the  sum  of dollars,  with  interest  thereon  as  stated  in  said 

petition,  and  has  stated  in  said  petition  that  said  action  is  commenced 

by  him  against  the  said to  recover  said  sum  of  money  and  interest 

as  rent  accrued,  within  one  year  previous  thereto,  upon  the  following 
described  premises  situated  in county,  Iowa,  to  wit:  (Here  de- 
scribe premises.) 

Now,  therefore,  you  are  hereby  commanded  to  attach  the  crops 

grown  on  said  premises  between  the day  of 18 — ,  and  the 

day  of ,  18 — ,  and  also  any  other  personal  property  of  the 

said which  has  been  used  or  kept  for  sale  on  said  premises  be- 
tween said  dates  and  not  exempt  from  execution,  wherever  the  same 
may  be  found  in  your  county,  or  so  much  thereof  as  shall  be  necessary 

to  satisfy  said  sum  of dollars,  and  interest  and  costs  of  suit,  and 

safely  preserve  the  same  to  be  dealt  with  according  to  law. 

And  of  this  writ  make  due  service  and  return  of  your  doings  here- 
under  to  our  said  court  on  or  before  the  first  day  of  the  next  term 
thereof. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and  caused  the 

seal  of  said  court  to  be  affixed  this day  of ,  18 — . 

[Seal.]  — ,  clerk 

of  the  district  court  of county,  Iowa. 

§  1105.  Of  the  levy  of  the  writ. — The  officer  is  bound 
to  levy  the  attachment  on  any  personal  property  in  the 
possession  of,  or  that  he  has  reason  to  believe  belongs  to, 
the  defendant,  or  on  which  plaintiff  directs  him  to  levy. 


§  1105.]  LANDLORD   AND   TENANT.  321 

But  if,  after  such  levy,  he  receives  notice  in  writing, 
under  oath,  from  some  other  person,  his  agent  or  attor- 
ney, that  such  property  belongs  to  him,  and  stating  the 
nature  of  his  interest,  and  the  facts  showing  how  and 
from  whom  he  acquired  such  interest,  and  for  what  con- 
sideration, or  from  the  defendant  that  the  property  is  ex- 
empt from  execution,  the  officer  may  release  the  property 
unless  a  bond  be  given;  but  the  officer  will  be  protected 
from  all  liability  by  reason  of  such  levy,  until  he  receives 
such  notice.  When  the  officer  receives  such  notice  he 
must  give  the  plaintiff,  his  agent  or  attorney,  notice  that 
an  indemnifying  bond  is  required.  Such  bond  may  there- 
upon be  given  by  or  for  the  plaintiff,  with  sureties,  to  the 
officer,  to  the  effect  that  the  obligors  will  protect  and 
indemnify  him  against  the  damages  he  may  sustain  in 
consequence  of  the  seizure  and  sale,  and  warrant  to  any 
purchaser  of  the  property  such  estate  or  interest  therein 
as  is  sold,  and  thereupon  the  officer  must  proceed  to  sub- 
ject said  property  to  the  attachment,  and  return  the  bond 
to  the  district  court  of  the  county  from  which  the  execu- 
tion issued.  If  such  bond  be  not  given,  the  officer  holding 
the  attachment  may,  within  a  reasonable  time  after  de- 
mand being  made  on  said  officer,  restore  the  property  to 
the  person  from  whose  possession  it  was  taken,  and  the 
levy  will  stand  discharged.64  The  bond  above  mentioned 
may  be  in  the  following  form: 

FORM  OF  INDEMNIFYING  BOND  TO  SHERIFF. 

Know  all  men  by  these  presents: 

That  we, ,  principal,  and sureties,  are  held  and  firmly 

bound  unto ,  sheriff  of county,  -Iowa,  in  the  penal  sum  of 

—  dollars,  lawful  money  of  the  United  States,  well  and  truly  to  be 
paid  to  the  said ,  sheriff,  as  aforesaid,  his  heirs,  executors  or  as- 
signs. 

The  conditions  of  this  obligation  are  such,  that  whereas,  the  said 

,  sheriff,  as  aforesaid,  has  in  his  hands  a  certain  writ  of  landlord's 

attachment  issued  from  the  office  of  the  clerk  of  the  district  court  of 

—  county,  Iowa,  on  the day  of  ,  18—,  for  the  sum  of 

«*Code,  Sees.  3906,  3991,  3994,  3993;    see  chapter  on  Executions 
and  Exemptions. 


322  LANDLORD   AND   TENANT.  [§  1106. 


dollars  and  costs  in  favor  of and  against ,  which  said 

writ  is  directed  to  said  sheriff. 

And  whereas,  said  sheriff  has  by  virtue  thereof  attached  the  follow- 
ing described  property  and  now  holds-  the  same. 

(Here  describe  property  attached.)  t 

And  whereas,  notice  in  writing  under  oath  has  been  duly  served  on 

said  sheriff  that  the  property  so  attached  belongs  to  ,  and  that 

his  interest  therein  is  that  of  (absolute  owner,  or  if  otherwise  state  the 
fact),  and  that  he  acquired  said  interest  (here  state  from  whom  and  how 
he  acquired  it),  and  that  he  paid  for  said  property  the  sum  of  (here  state 
the  consideration),  and  demanding  that  the  said  property  be  released. 

And  whereas,  notice  of  such  claim  and  notice  by  the  said has 

been  given  to ,  plaintiff  in  said  action,  that  an  indemnifying  bond 

is  required. 

Now,   if  said  obligors  shall  and  will   indemnify  the   said  , 

sheriff,  against  all  damages  which  he  may  sustain  in  consequence  of  the 
seizure  or  sale  under  said  writ  of  the  following  described  personal  prop- 
erty, to  wit  (here  describe  property  attached),  and  shall  and  will  pay  to 
any  claimant  of  said  property  all  damages  he  may  sustain  in  conse- 
quence of  said  seizure  or  sale  thereof,  and  shall  and  will  warrant  and 
make  good  to  the  purchaser  thereof  at  said  sale  all  of  the  estate,  and 
interest  which  shall  be  sold  therein  at  said  sale,  then  this  obligation  to 
be  void,  otherwise  to  remain  in  full  force  and  virtue. 

Dated  this day  of ,  18—. 

,  principal. 


sureties. 

(Add  Justification  by  sureties.) 


t 


The  sheriff  taking  the  bond  must  approve  the  same, 
which  approval  may  be  in  the  following  form: 

The  foregoing  bond  taken  and  the  sureties  therein  approved  by  me 

this day  of ,  18—. 

,  sheriff  of county,  Iowa. 

§  1106.  Of  pleading,  etc. — The  answer  should  state 
whatever  defense  the  defendant  may  have  in  accordance 
with  the  usual  rules  of  pleading.  If  the  answer  only 
takes  issue  on  the  indebtedness,  and  does  not  controvert 
the  plaintiff's  right  to  a  lien,  provided  an  indebtedness  is 
proved  evidence  tending  to  show  that  a  large  portion  of 
the  rent  for  which  the  action  is  brought  accrued  more 
than  a  year  prior  to  its  commencement,  is  not  admissible, 
and  in  such  a  case  it  is  only  necessary  for  the  jury  to  pass 


§  1106.]  LANDLORD   AND   TENANT.  323 

upon  the  issue  of  indebtedness  to  authorize  the  entry  of  a 
judgment  recognizing  the  lien.65 

Where,  after  an  assignment  of  a  lease,  the  landlord 
sued  out  an  attachment  against  the  original  lessees,  and 
caused  it  to  be  levied  on  property  of  the  assignees,  and 
on  the  premises,  and  made  service  by  publication  after 
the  proceedings  had  been  amended  to  make  the  assignees 
parties,  the  levy  did  not  confer  jurisdiction,  as  the  as- 
signees were  not  parties  in  the  writ,  and  the  fact  that 
they  afterward  replevied  the  property  did  not  cure  the 
defect.66  Whether  a  landlord's  lien  is  assignable.67  But 
the  lease  is  assignable  and  it  carries  the  lien  of  the  land- 
lord with  it,  as  well  as  all  remedies  for  its  enforcement.68 
A  sheriff  may  show  that  property  taken  under  the  writ 
was  delivered  to  a  third  person  by  direction  of  the  attor- 
ney of  the  plaintiff  in  the  attachment  and  thus  avoid 
liability  for  the  negligence  of  the  receiptor.69 

65  Bartlett  v.  Gaines,  11-95.  «s  Hay  wood   v.   O'Brien,   52-537; 

SB  Wells,  etc.,  v.  Sequin,  etc.,  14-  Lufkin  v.  Preston,  52-235. 

143.  69  Citizens  Nat'l  Bk.  v.  Loomis, 

«T  Farwell  v.  Grier,  38-83.  69  N.  W.,  443. 


OHAPTEK  LXVIII. 

OF  MANDAMUS. 

Sec.  1107.  Object  and  purpose  of  the  order. 

1108.  By  whom  issued. 

1109.  Will  not  issue  to  control  discretion. 

1110.  When  the  order  will  be  issued 

1111.  When  the  order  will  be  refused. 

1112.  On  whose  petition  granted. 

1113.  When  action  for  may  be  joined  with  other  causes  of  action. 

1114.  Of  the  petition. 

1115.  Of  practice. 

1116.  Of  the  order. 

1117.  Of  power  of  the  court 

Section  1107.     Object  and  purpose  of  the  order.— 

The  object  of  a  writ  of  mandamus  is  to  maintain  an  order 
of  a  court  of  competent  jurisdiction  commanding  an  in- 
ferior tribunal,  board,  corporation  or  person,  to  do  or  not 
to  do  an  act,  the  performance  or  omission  of  which  the 
law  enjoins  as  a  duty  resulting  from  an  office,  trust  or 
station.1  Formerly  and  under  the  code  of  1851,  the  pro- 
ceeding by  mandamus  was  a  prosecution,  in  the  name  of 
the  State,  commenced  by  filing  an  information  under 
oath;  and  on  motion  presented  in  open  court,  the  court 
ordered  an  alternative  writ  to  issue,  or  granted  a  rule 
to  show  cause  why  an  alternative  writ  should  not  issue. 
The  defendant  made  answer  to  this  writ,  upon  which  is- 
sues the  cause  was  tried  and  a  peremptory  writ  granted 
or  refused.2 

§  1108.  By  whom  issued. — The  order  for  a  writ  of 
mandamus  may  be  issued  by  the  district  or  superior  court 
to  any  inferior  tribunal,  or  to  any  corporation,  officer  or 
person,  and  by  the  supreme  court  to  any  district  or  su- 

iCode,  Sec.  4341;  State  v.  Coun-  Vail,  43-142;  Larkin  v.  Harris  36- 
ty  Judge,  12-237,  246;  Patterson  v.  93. 

2  Chance  v.  Temple,  1-178. 
324 


§§  1109,  1110.]  MANDAMUS.  325 

perior  court,  if  necessary;  and  also  in  any  other  case 
where  it  is  found  necessary  for  that  court  to  exercise  its 
legitimate  power.3 

§  1109.  Will  not  issue  to  control  discretion. — When 
discretion  is  left  to  the  inferior  tribunal  or  person,  the 
mandamus  can  only  compel  it  to  act,  but  can  not  control 
such  discretion,  even  though  such  discretion  be  exercised 
unwisely.4 

§  1110.  When  the  order  will  be  issued. — The  plaint- 
iff in  any  action  except  those  brought  for  the  recovery  of 
specific  real  or  personal  property,  may  also  as  an  auxil- 
iary relief  have  an  order  of  mandamus  to  compel  the  per- 
formance of  a  duty  established  in  such  action.  But  if 
such  duty,  the  performance  of  which  is  sought  to  be  com- 
pelled, is  not  one  resulting  from  an  office,  trust  or  station, 
it  must  be  one  for  the  breach  of  which  a  legal  right  to 
damages  is  already  complete  at  the  commencement  of 
the  action,  and  must  also  be  a  duty  of  which  a  court  of 
equity  would  enforce  the  performance.5 

It  will  issue  to  enforce  the  discharge  of  an  official  duty 
where  the  exercise  of  discretion  is  not  involved;6  the  or- 
der may  be  made  to  compel  the  auditor  of  State  to  issue 
his  warrant  upon  the  treasurer  of  State  for  a  sum  due  a 
public  officer  on  his  salary.7  So  the  duty  of  a  city  council 
to  levy  a  tax  not  exceeding  the  maximum  limit  of  the 
power  of  taxation,  for  the  payment  of  a  judgment  against 
the  corporation,  upon  which  an  execution  has  been  issued 
and  returned  nulla  bona,  may  be  enforced  by  mandam- 
us;8 and  a  county  treasurer  holding  money  collected 

s  Code,  Sec.  4342;  Westbrook  v.  kin  v.  Harris,  36-93;   Patterson  v. 

Wicks,    36-382;     Brown    v.    Crego,  Vail,  43-142. 

29-321.  e  Code,  Sec.  4341;   Bryan  v.  Cat- 

*  Code,  Sec.  4341;   Bryan  v.  Cat-  tell,  15-538;  Case  v.  Blood,  71-632; 

tell,  15-538;  Clark  v.  The  Board  of  Dist.    Twp.    v.    Ind.   Dist.,    72-687; 

Directors,    etc.,    24-26fr;    Jones    v.  Newby  v.  Free,  72-379;   Ridley  v. 

Trustees,  etc.,  26-594;  Scripture  v.  Doughty,  77-226;  Hancock  v.  Dist. 

Burns,  59-70;   Bailey  v.  Ewart;  52-  Twp.,    78-550;    Ireland  v.   Hunnel, 

111;  Coy  v.  City  Council  of  Lyons,  90-98. 

17-1;     Peters   v.   Warner,    81-335;  ~  Bryan  v.  Cattell,  15-538. 

Malt  Ext.  Co.  v.  C.,  R.  I.  &  P.  R.  s  Coy    v.    The    City    Council    of 

Co.,  73-98.  Lyons,  17-1;  State  v.  County  Judge, 

s  Brown   v.   Crego,  29-321;    Lar-  etc.,  12-237;    State  v.  City  of  Dav- 


326  MANDAMUS.  [§  1110. 

upon  a  tax  to  pay  a  judgment  against  the  county  may  by 
mandamus  be  compelled  to  pay  the  same  to  the  judgment 
creditor  on  demand;9  but  in  some  cases  it  will  not  lie 
against  an  officer  to  compel  a  refunding  of  a  tax,10  and  the 
directors  of  a  school  district  refusing  to  levy  a  tax  to  pay 
a  judgment  against  the  district  may  be  compelled  by 
mandamus  to  do  so,  notwithstanding  the  fact  that  the 
electors  of  the  district  failed  and  refused  to  provide  there- 
for by  not  voting  the  necessary  tax;11  and  the  board  of 
supervisors  may  be  compelled  by  mandamus,  when  act- 
ing as  a  board  of  canvassers,  to  declare  elected,  and  issue 
a  certificate  to  the  person  receiving  the  highest  number 
of  votes  cast  at  an  election.12  This  action  will  lie  to  com- 
pel a  road  supervisor  to  remove  trees  standing  in  and  ob- 
structing the  highway,  when  he  fails  to  perform  his  duty 
in  that  respect.13  So  he  may  be  thus  compelled  to  re- 
move a  fence  or  other  obstruction  improperly  placed  by 
him  in  a  highway.14 

And  a  municipal  corporation,  which,  in  order  to  avoid 
the  payment  of  its  debts,  purposely  keeps  the  valuation 
and  assessment  of  property  in  its  limits  too  low,  will  be 
compelled  by  mandamus  to  make  a  fair  assessment  and 
apply  in  payment  of  a  judgment  against  said  corpora- 
tion, of  the  proceeds  arising  from  the  maximum  tax  levied 
thereon,  such  surplus  as  may  remain  after  deducting  the 
amount  required  for  current  expenses,15  and  a  railway 
company  may  be  by  mandamus  compelled  to  construct 
and  maintain  a  private  crossing  where  such  duty  is  im- 
posed by  law.16  A  board  of  school  directors  refusing  to 
act  in  a  proper  case  may  be  compelled  to  do  so  by  man- 
damus;17 and  when  the  electors  of  a  school  district  have 

enport,   12-335;    see   State   v.   The  is  Patterson  v.  Vail,  43-142. 

Mayor,  etc.,  18-388.  i*  Larkiu  v.  Harris,   36-93. 

»  Brown  v.  Crego,  32-498.  is  Coffin  v.  The  City  of  Daven- 

10  Eyerly  v.  Board,  81-189.  port,  26-516. 

11  Boynton  v.  The  Dist.  Twp.,  34-  ie  Boggs  v.  C.,  B.  &  Q.  R.  Co., 
510.  54-435. 

12  Bradfield    v.    Wait,    etc.,     36-  "  Albin  v.   Board   of   Directors, 
291;     The    State    v.    The    County  58-77;  Wood  v.  Farmer,  69-533. 
Judge,  etc.,  7-186;   State  v.  Bailey 

Co.  Judge,  7-390. 


§  1110.]  MANDAMUS.  327 

determined  that  the  school  house  of  the  district  may  at 
proper  times  be  used  for  religious  meetings  and  Sunday 
schools,  the  duty  of  the  directors  to  open  the  house  for 
the  purpose  may  be  enforced  by  mandamus.18  So  it  will 
lie  to  compel  the  county  treasurer  to  pay  over  to  a  rail- 
road company  entitled  thereto  a  tax  voted  and  collect- 
ed;19 and  a  municipal  corporation  may  have  an  order  of 
mandamus  against  a  public  officer  after  his  resignation, 
to  compel  him  to  deliver  the  books  and  papers  of  the  cor- 
poration, which  he  wrongfully  detains;20  and  the  proper 
county  officer  may  by  an  order  of  mandamus  be  compelled 
to  affix  the  county  seal  to  county  warrants  legally  is- 
sued,21 and  this  writ  may  issue  to  enforce  the  collection 
of  a  judgment  rendered  in  the  United  States  court;22  and 
proceedings  may  be  had  by  mandamus  to  compel  a 
municipal  corporation  to  levy  a  tax  to  pay  a  judgment 
notwithstanding  such  judgment  was  also  rendered 
against  an  individual  who  has  property  subject  to  an  exe- 
cution;23 and  it  will  lie  at  the  instance  of  proper  parties 
to  compel  the  directors  of  a  district  township  to  take  ac- 
tion with  reference  to  detaching  certain  territory  from 
said  township  and  adding  it  to  an  independent  district 
having  acted  favorably  thereto;24  and  it  would  seem  that 
an  order  of  mandamus  would  issue,  to  compel  the  ap- 
pointment of  arbitrators  to  divide  assets  of  a  school  dis- 
trict, when  an  independent  district  has  been  carved  out 
of  a  district  township,  and  the  parties  could  not  agree  on 
a  division;25  and  when  a  school  house  has  been  removed 
under  an  order  of  the  directors,  which  order  is  reversed 
by  the  county  and  State  superintendent,  it  is  the  duty  of 
the  board  to  return  the  school  house  to  its  former  site, 
and  mandamus  will  lie  to  compel  them  to  do  so,26  and  to 
compel  a  county  judge  to  canvass  the  votes  upon  the  ques- 

is  Davis  v.  Boget,  50-11.  23  Palmer  v.  Stacy,  44-340. 

is  The  McGregor  &  S.  C.  R.  Co.  2*  Hightower  v.  Overhaulser,  65- 

v.   Birdsall,  30-255;    see  Eyerly  v.  347. 

Board,  81-189.  25  Case  v.  Blood,  68-486. 

20  Keokuk  v.  Merriam,  44-432.  26  Atkinson   v.    Hutchinson,    68- 

21  Prescott  v.  Gonser,  34-175.  161. 

22  Ex  parte  Holman,  28-88. 


328  MANDAMUS  [§ 

tion  of  removing  a  county  seat;27  to  compel  a  city  to  col- 
lect and  pay  over  damages  to  persons  injured  by  laying 
out  streets  through  their  premises.28 

§1111.  When  the  order  will  be  refused. — It  will  not 
lie  at  the  instance  of  a  proprietor  of  a  newspaper,  to  com- 
pel the  board  of  supervisors  to  order  publication  of  their 
proceedings  in  his  paper;29  nor  in  favor  of  a  party  ag- 
grieved by  the  action  of  a  board  of  school  directors,  when 
he  has  an  adequate  remedy  by  appeal  to  the  county  su- 
perintendent, and  from  him  to  the  superintendent  of 
public  instruction;30  nor  to  compel  county  officers  to 
strike  out  an  assessment  alleged  to  be  erroneous;31  nor 
in  any  case  where  the  petition  shows  that  the  plaintiff 
has  a  plain,  speedy  and  adequate  remedy  at  law;32  nor 
against  the  State;33  nor  can  a  debt,  while  it  remains  in  its 
original  form,  and  not  reduced  to  judgment,  be  made  the 
basis  of  an  action  of  mandamus  to  compel  the  levy  of  a 
tax  to  pay  the  same,  unless  such  proceedings  were  auth- 
orized by  the  law  under  which  it  was  contracted;34  nor 
will  it  lie  to  compel  a  municipal  corporation,  which  re- 
quires all  the  proceeds  of  a  tax  which  is  up  to  the  full 
limit  authorized  by  law  to  meet  ordinary  expenses,  to 
apply  a  part  of  such  fund  to  the  payment  of  a  judgment 
against  such  corporation;35  nor  to  compel  the  board  of 
supervisors  to  levy  a  tax  to  pay  a  judgment  rendered  upon 
warrants  issued  for  ordinary  expenses  and  bridge  pur- 
poses, when  it  appears  that  they  have  levied  the  maxi- 
mum rate  allowed  by  law  for  such  purpose;36  nor  to  com- 
pel the  issuance  of  a  teacher's  certificate  by  the  county 
superintendent,  but  only  to  compel  him  to  take  some  ac- 
tion on  the  application  therefor;37  nor  will  it  lie  to  com- 

2T  Dishon  v.  Smith,  etc.,  10-213.  33  Mills  Pub.  Co.  v.  Larrabee,  78- 

zs  state  v.  City  of  Keokuk,  9-438.  97. 

29  Welch  v.  The  Board,  etc.,  23-  34  Coy  v.  The  City  of  Lyons,  17-1. 
199.  35  Coffin  v.  The  City  of  Daven- 

30  Marshall  v.  Sloan,  35-445.  port,  26-516. 

si  Meyer  v.  The  County  of  Du-  ss  polk  v.  Winett,  37-34;  The 
buque,  43-592.  Iowa  R.  &  L.  Co.  v.  Sac  Co.,  39-126. 

32  Meyer  v.  The  County  of  Du-         ST  Bailey  v.  Ewart,  52-111. 
buque,   43-592;     Smith  v.    Powell, 
55-215. 


§§  1112,  1113.]  MANDAMUS.  329 

pel  an  officer  to  do  that  which  is  not  within  his  power  to 
do;38  nor  against  a  religious  corporation,  to  compel  the 
reinstatement  of  a  member  expelled,  and  inquiring  into 
the  rightfulness  of  such  action,  no  property  interest  or 
other  valuable  civil  right  being  affected;39  nor  to  compel 
the  clerk  of  the  courts  to  issue  an  execution  on  a  judg- 
ment;40 nor  at  the  instance  of  a  contractor  against  a 
school  board,  when  the  board,  in  inviting  proposals,  said : 
"The  contract  will  be  awarded  to  the  lowest  responsible 
bidder;  the  board  reserves  the  right  to  reject  any  and  all 
bids,"  and  the  contractor  claimed  to  be  the  lowest  respon- 
sible bidder;  he  could  not  compel  the  board  to  award 
him  the  contract;41  nor  to  compel  school  directors  to 
act  in  cases  when  they  have  met  and  are  unable  to 
agree;42  nor  will  it  lie  to  compel  school  directors  to  re- 
store territory.43 

§1112.  On  whose  petition  granted. — The  order  of 
mandamus  is  granted  on  the  petition  of  any  private  party 
aggrieved,  without  the  concurrence  of  the  prosecutor  for 
the  State,  or  on  the  petition  of  the  State  by  the  county 
attorney,  when  the  public  interest  is  concerned,  and  is  in 
the  name  of  such  private  party,  or  of  the  State,  as  the 
case  may  be  in  fact  brought.44  It  is  doubtful  if  an  actioi) 
by  an  independent  school  district  against  its  president  to 
compel  him  to  perform  a  duty  involves  the  public  interest 
in  such  a  sense  as  to  require  the  action  to  be  brought  in 
the  name  of  the  State.45 

§  1113.  When  action  for  may  be  joined  with  other 
causes  of  action.  — When  the  action  is  brought  by  a  pri- 
vate person  it  may  be  joined  with  a  cause  of  action  for 
such  an  injunction  as  may  be  obtained  by  ordinary  pro- 
ceedings, or  with  any  action  except  those  brought  for 
recovery  of  specific  real  or  personal  property.46 

ss  Rice  v.  Walker,  44-458.  "Code,  Sec.  4345;  but  see  Oden- 

s»Sale  v.  First,  etc.,  62-26.  dahl  v.   Russell,  86-669;    Crane  v. 

40  Pickel    v.    Owen,    66-485;    see  C.  &  N.  W.  R.  Co.,  74-330. 
Code,  Sec.  4344.  45  ind.  Dist.  v.  Rhodes,  88-570. 

41  Hanlin  v.  Dist.  Twp.,  66-69.  46  Cooper     v.      Nelson,     38-440; 

42  Case  v.  Blood,  68-486.  Code,  Sec.  4348. 
«  Barnett  v.  Ind.  Dist.,  73,  134. 


330  MANDAMUS.  £§  1114. 

§  1114.  Of  the  petition. — As  we  have  seen  the  order 
of  mandamus  is  granted  on  the  petition,  and  this  petition 
must  state  the  claim  of  the  plaintiff,  and  facts  sufficient 
to  constitute  cause  for  such  claim;  that  the  plaintiff,  if  a 
private  individual,  is  personally  interested  therein,  and 
that  he  sustains  and  may  sustain  damage  by  the  non-per- 
formance thereof,  and  that  performance  has  been  de- 
manded by  him  and  refused  or  neglected,  and  must  pray 
for  an  order  of  mandamus  commanding  the  defendant  to 
fulfill  such  duty.47 

The  petition  may  be  in  the  following  form : 

FORM    OF    PETITION   IN    MANDAMUS    TO    COMPEL    TOWNSHIP 
TRUSTEES  TO  CERTIFY  TO  COUNTY  TREASURER  THAT 
THE  CONDITIONS  ON  WHICH  A  TAX  TO  A  RAIL- 
ROAD COMPANY  WAS  VOTED  HAVE  BEEN 
COMPLIED  WITH. 

Title. 
Venue. 

The  plaintiff  states  that  the  defendants,  and  each  of  them,  are  the 

duly  qualified  and  acting  trustees  of township  in  the  county  of 

,  and  State  of  Iowa. 

.That  at  all  the  times  hereinafter  mentioned  the railway  com- 
pany was  a  corporation  for  pecuniary  profit,  duly  organized  and  exist- 
ing under  the  laws  of  the  State  of  Iowa,  and  engaged  in  the  building  and 

operation  of  a  line  of  railway  from  the  city  of ,  Iowa,  to  the  city 

of ,  Iowa,  passing  through  said township. 

That  on  the day  of 18 — ,  at  a  special  election,  duly  and 

legally  called  for  that  purpose,  the  electors  of  said  township 

voted  a  special  tax  of  —  —  per  cent,  upon  the  taxable  property  of  said 

township,  for  the  purpose  of  aiding  the  said railway  company  in 

the  construction  of  its  said  railway.  That  said per  cent,  tax  was 

voted  to  said —  railway  company  upon  the  following  conditions  to 

be  performed  by  said  railway  company,  to  wit: 

1.  That  one-half  of  said  tax  shall  be  due  and  collectible  when  said 
road  is  constructed  through  the  said  township,  and  the  other  half  in  the 
year  following. 

2.  That  fifty  consecutive  miles  of  said  railway  shall  be  completed, 
passing  through  said  township,  and  the  cars  running  thereon. 

3.  That  said  tax  shall  become  null  and  void  unless  said  railway 
shall  be  completed  through  said  township  as  above  specified,  and  the 
cars  running  thereon  by  the  first  day  of  December,  18 — . 

4.  That  said  company  was  to  erecc  and  maintain  a  depot  within 

*7  Code,  Sec.   4346;    Coffin  v.   The  City  of  Davenport,  26-516;    Scrip- 
ture v.  Burns,  59-70. 


§  1114.]  MANDAMUS.  331 

fifteen  hundred  feet  of  the  wind-mill  used  by  the  elevator  company  at 
the town  of ,  in  said  township. 

5.     (Here  insert  any  other  conditions  on  which  said  tax  was  voted.) 

That  said  conditions  were  duly  set  forth  in  the  notice  of  the  special 
election  at  which  said  tax  was  voted,  and  were  duly  certified  by  the 

township  clerk  of  said  township,  to  the  county  auditor  of county, 

together  with  the  rate  of  per  cent,  of  tax  so  voted,  the  year  in  which  the 
same  was  to  be  collected  and  an  exact  copy  of  the  notice  under  which 
said  election  was  held,  which  certificate  was  duly  filed  for  record  in  the 

office  of  the  recorder  of  deeds  of  said county,  on  the day 

of ,  18 — ,  and  recorded  in  book ,  on  pages of  miscel- 
laneous records  of ,  Iowa. 

That  said  tax  so  voted  was  duly  levied  by  the  board  of  supervisors 
of  said  county  and  placed  upon  the  tax  list  of  said  township,  in  all  re- 
spects according  to  law,  and  a  large  portion  of  said  fax  has  been  paid  to 
the  county  treasurer  by  the  taxpayers  of  said  township,  to  wit,  the  sum 

of  about  thousand  dollars,  and  the  same  still  remains  in  the 

hands  of  said  county  treasurer. 

That  the  conditions  required  of  the  said  railway  company  upon 
which  said  tax  was  voted,  were  and  have  been  fully  complied  with  and 
performed  on  part  of  said  railway  company;  that  said  railway  company 
built,  constructed  and  completed  its  said  line  of  railway  for  a  distance 
of  fifty  consecutive  miles,  the 'same  passing  through  said  township,  and 
operated  the  same  with  cars  running  thereon,  before  the  first  day  of 
December,  18 — ,  and  erected  and  maintained  a  depot  within  fifteen  hun- 
dred feet  of  the  wind-mill  used  by  the  elevator  company  at  the  town  of 

— ,  Iowa,  in  said  township,  and  it  thereupon  became  the  duty  of  the 
trustees  of  said  township  to  so  certify  to  the  treasurer  of  said  county, 
as  required  by  law. 

That  said  county  treasurer  refuses  to  pay  over  the  said  money  so 
collected,  in  his  hands,  because  said  defendants  have  failed  and  neg- 
lected to  make  certificate  required  by  law,  as  above  set  forth.  The 
plaintiffs  are  personally  and  individually  interested  in  having  the  above 
mentioned  duty  of  said  township  trustees  performed,  and  sustained,  and 
will  sustain,  great  damages  by  the  non-performance  of  said  duty,  and 

have  been  damaged  thereby  to  the  sum  of thousand  dollars  by  the 

loss  of  interest  on  said  taxes  and  otherwise. 

That  on  the day  of ,  18 — ,  the  plaintiffs,  in  writing,  duly  / 

demanded  of  said  trustees  that  they  make  certificate  to  the  county  / 
treasurer,  as  required  by  law,  showing  that  the  conditions  upon  which/ 
said  tax  was  voted  had  been  fully  complied  with,  a  copy  of  which  notice! 
is  hereto  annexed  and  marked  "Exhibit  A,"  and  made  part  of  this  petiV 
tion. 

The  said  township  trustees,  the  defendants  above  named,  disregard- 
ing their  duty  in  the  premises,  have  failed  and  refused,  and  do  still  re- 
fuse, to  make  the  certificate;  for  the  purpose  of  unlawfully  preventing 
the  said  railway  company  from  collecting  and  receiving  from  said  coun- 
ty any  portion  of  said  tax. 

Wherefore  plaintiffs  pray  that  a  peremptory  order  of  mandamus  of 


332  MANDAMUS.  [§1115. 

this  court  issue  to  be  directed  to  said  defendants,  commanding  them 

forthwith  to  certify  to  the  said  treasurer  of  said  county,  Iowa, 

that  the  conditions  required  of  said  railway  company  at  said  special 
election  at  which  said  tax  was  voted  have  been  fully  complied  with,  and 
performed,  on  part  of  said railway  company,  and  that  the  plain- 
tiffs have  judgment  against  the  defendants,  and  each  of  them,  for 

thousand  dollars  damages,  and  for  costs  of  this  proceeding. 

,  attorneys  for  plaintiff. 

(Add  verification.) 

(A  copy  of  the  notice  referred  to  in  petition  should  be  attached 
thereto.) 

FORM  OF  PETITION  FOR  MANDAMUS. 

The  plaintiff  states: 

That  (name  of  corporation)  Is  a  civil  corporation,  organized  under 
the  laws  of  this  State;  that  the  defendants  are  the  officers  of  said  cor- 
poration authorized  by  law  to  levy  and  collect  taxes  for  and  on  behalf  of 
said  corporation;  that  on  the day  of A.  D.  18 — ,  the  plain- 
tiff recovered  a  judgment  in  this  court,  against  said  (name  of  the  cor- 
poration) upon  the  ordinary  evidence  of  indebtedness  issued  by  said  cor- 
poration for  the  sum  of  one  thousand  dollars  and  costs;  that  on  the 
day  of A.  D.  18 — ,  an  execution  was  issued  on  said  judg- 
ment and  returned  wholly  unsatisfied,  no  property  of  said  corporation 
being  found  on  which  to  levy  the  same;  that  it  became  the  duty  of  the 

defendants  on  or  before  the day  of A.  D.  18 — ,  to  levy  a 

sufficient  tax  upon  the  taxable  property  of  said  (city  or  county)  to  pay 
the  said  judgment,  with  interest  and  costs;  that  on  the day  of 

-  A.  D.  18—,  the  plaintiff  requested  of,  and  demanded  that  the  de- 
fendants should  and  would  levy  such  tax;  that  they  have  wholly  neg- 
lected and  refused  to  do  so;  that  plaintiff  is  personally  interested  in  the 
collection  of  the  judgment  herein  referred  to,  whereby  the  plaintiff  is 
greatly  damaged  and  hindered  in  the  collection  of  said  judgment. 

Wherefore  the  plaintiff  prays  that  a  peremptory  order  of  mandamus 
issue,  commanding  said  defendants  forthwith  to  levy  and  collect  a  suf- 
ficient tax  to  pay  the  said  judgment,  with  interest  and  costs,  together 
with  the  costs  "of  this,action,  and  pay  the  same  to  the  plaintiff. 

,  attorney  for  plaintiff. 

(Add  the  usual  verification.) 

§  1115.  Of  practice. — The  pleadings  and  other  pro- 
ceedings in  any  action  in  which  a  mandamus  is  claimed, 
must  be  the  same  in  all  respects,  as  nearly  as  may  be,  and 
costs  are  recoverable  by  either  party,  as  in  an  ordinary 
action  for  the  recovery  of  damages,48  nor  is  it  triable  de 

*8  Code,    Sec.    4347;    Chance    v.      of  Keokuk,  41-689;   Dist.  Twp.  v. 
Temple,  1-178;   Dove  v.  Ind.  Dist.      Ind.  Dist.,  72-687. 


§§1116,   1117.]  MANDAMUS.  333 

novo  in  the  supreme  court.49  The  order  of  mandamus 
can  not  properly  be  issued  as  preliminary  or  intermediate 
process,  but  only  after  hearing  and  judgment.50  No 
counter  claim  is  allowed,  and  no  joinder  except  as  here- 
tofore stated.51 

§  1116.  Of  the  order. — When  the  plaintiff  recovers 
judgment  the  court  may  include  therein  a  peremptory  or- 
der of  mandamus  directed  to  the  defendant  commanding 
him  forthwith  to  perform  the  duty  required,  and  may 
award  a  money  judgment  for  damages  and  costs,  upon 
which  execution  may  issue.52  The  order  must  simply 
command  the  performance  of  tlie  duty,  and  must  be  di- 
rected to  the  party,  and  may  be  issued  in  term  time,  or 
in  vacation,  and  shall  be  returnable  forthwith,  and  no  re- 
turn except  that  of  compliance  will  be  allowed;  but  time 
to  return  the  writ  may,  upon  sufficient  grounds,  be  al- 
lowed by  the  court  or  judge,  either  with  or  without  terms, 
in  the  exercise  of  a  wise  discretion.53  The  writ  or  order 
of  mandamus  may  be  in  the  following  form: 

FORM  OF  PEREMPTORY  ORDER  OF  MANDAMUS. 

The  State  of  Iowa. 
To  (name  of  defendant),  greeting: 

Whereas,  on  the day  of A.  D.  18 — ,  in  an  action  then 

pending  in  the  (name  of  the  court),  wherein  was  plaintiff,  and 

—  defendant,  judgment  was  rendered  by  said  court  that  a  peremp- 
tory order  of  mandamus  issue  in  said  action  commanding  you,  the  said 
defendant,  to  (insert  the  thing  required  to  be  done,  or  omitted). 

Now,  therefore,  you  are  hereby  commanded,  that  immediately  on  the 
receipt  of  this  order,  you,  (here  insert  the  duty  to  be  performed),  and 
forthwith  make  return  to  our  said  court  how  you  have  complied  with 
the  demands  of  this  order. 

Witness,  ,  clerk  of  said  court,  with  the  seal  thereof  hereto 

affixed,  this  —   —  day  of A.  D.  18—. 

[Seal.]  ,  clerk. 

§  1117.  Of  the  power  of  the  court. — The  court  may, 
upon  application  of  the  plaintiff,  besides,  or  instead  of 
proceeding  against  the  defendant  by  attachment,  direct 

«  Dove  v.  The  Ind.  Dist.  of  Keo-         si  Code,  Sec.  4348. 

kuk,  41-689.  52  Code,  Sec.  4349. 

BO  Wright  v.  Conner,  34-240.  53  Code,  Sec.  4350. 


334  MANDAMUS.  [§  1117. 

that  the  act  required  to  be  done,  be  done  by  the  plaintiff 
or  some  other  person  appointed  by  the  court,  at  the  ex- 
pense of  the  defendant ;  and  upon  the  act  being  done,  the 
amount  of  such  expense  may  be  ascertained  by  the  court, 
or  by  a  referee  appointed  by  the  court,  as  the  court  or 
judge  may  order,  and  the  court  may  render  judgment  for 
the  amount  of  such  expenses  and  costs,  and  enforce  pay- 
ment thereof  by  execution.54  During  the  pendency  of 
the  action,  the  court,  or  judge  in  vacation,  may  make 
temporary  orders  for  preventing  damages  or  injury  to 
the  plaintiff,  until  the  action  is  decided.55  When  the 
State  is  a  party  it  may  appeal  without  security.56 

B*  Code,  Sec.  4351.  B«  Code,  Sec.  4353. 

ss  Code,  Sec.  4352. 


CHAPTEK  LXIX. 

OF  MECHANICS'  LIENS  AND  CLAIMS. 

Sec.  1118.    Of  claims  of  sub-contractors  of  public  buildings  and  im- 
provements. 

1119.  Same — Manner  of  making  claim. 

1120.  Same — Adjudication  of  claim — Release  of — Filing  prevented, 

how. 

1121.  Of  liens  for  opening,  developing  and  operating  coal  mines. 

1122.  Who  may  have  a  mechanic's  lien. 

1123.  When  no  lien  allowed  because  collateral  security  is  taken. 

1124.  Other  cases  in  which  the  right  to  a  lien  is  denied. 

1125.  Of  the  contract. 

1126.  Of  liens  on  the  wife's  property  by  virtue  of  contracts  made 

with  the  husband. 

1127.  Extent  of  lien  generally. 

1128.  Of  priority  of  the  lien. 

1129.  When  the  lien  attaches — Its  continuance. 

1130.  Of  preserving  the  lien. 

1131.  Of  the  duties  of  the  clerk. 

1132.  By  whom  and  in  what  court  liens  may  be  enforced. 

1133.  Who  made  defendants. 

1134.  When  lien  will  be  forfeited. 

1135.  Of  pleadings,  practice,  etc. 

1136.  Of  satisfaction  of  the  lien. 

1137.  Of  the  petition. 

1138.  Of  judgment. 

1139.  Of  limitation  of  actions. 

1140.  Of  sub-contractors — Who  are. 

1141.  Of  the  sub-contractor's  lien — How  preserved  and  how  dis- 

charged. 

1142.  Of  payments  made  by  the  owner  to  the  contractor  within  the 

thirty  days,  etc. 

1143.  Extent  of  lien  of  sub-contractor,  when  claim  filed  after  thirty 

days. 

Section  1118.  Of  claims  of  sub-contractors  of  pub- 
lic buildings  and  improvements. — Every  mechanic,  la- 
borer or  other  person,  who  as  sub-contractor  performs 
work  or  labor  upon,  or  furnishes  material  for  the  con- 

335 


336  MECHANICS'  LIENS  AND  CLAIMS.    [§§  1119,  1120. 

struction  of  any  public  building,  bridge  or  other  improve- 
ment not  belonging  to  the  State,  has  a  valid  claim  against 
the  public  corporation  constructing  such  building,  bridge 
or  other  improvement,  for  the  value  of  such  services  and 
material  in  an  amount  not  in  excess  of  the  contract  price, 
to  be  paid  for  the  same;  but  such  corporation  is  not  re- 
quired to  pay  such  claim  at  any  time  before,  or  in  any 
manner  different  from  that  provided  in  the  principal  con- 
tract. The  corporation  may  pay  its  contractor  accord- 
ing to  the  terms  of  its  contract. 

§  1119.  Same — Manner  of  making  claim. — Such 
claim  is  made  by  filing  with  the  public  officer  through 
whom  the  payment  is  to  be  made  an  itemized  and  sworn 
statement  of  the  demand  within  thirty  days  after  the  per- 
formance of  the  last  work  or  labor,  or  the  furnishing  of 
the  last  portion  of  the  material,  and  such  claims  have 
priority  in  the  order  in  which  they  are  filed,  and  the  state- 
ment must  show  on  its  face  that  it  is  a  sworn  statement.1 

§  1120.  Same — Adjudication  of  claim — Release  of 
—Filing  prevented,  how. — Any  party  in  interest  may 
cause  to  be  adjudicated  the  validity  of  such  claim,  its 
priority,  the  amount  due  thereon,  or  the  mode  and  time 
of  payment,  by  equitable  action  in  the  district  court,  and 
the  court  may  assess  a  reasonable  attorney's  fee  against 
a  party  failing  and  in  favor  of  such  corporation.2  The 
contractor  can  at  any  time  release  such  claim  by  filing 
with  the  treasurer  of  such  corporation  a  bond  for  the 
benefit  of  such  claimant,  with  sufficient  penalty  and  sure- 
ties approved  by  such  treasurer,  conditioned  for  the  pay- 
ment of  the  sum  found  due  claimant,  and  the  contractor 
may  prevent  the  filing  of  such  claims  by  filing  in  like  man- 
ner a  bond  conditioned  for  the  payment  of  persons  who 
may  be  entitled  to  file  such  claims;  actions  may  be 
brought  on  such  bond  by  any  claimant  within  one  year 
after  the  cause  of  action  accrues  and  judgment  rendered 

iCode,  Sec.  3102;  McGillivray  v.      93;  Hunt  v.  King,  66  N.  W.,  71. 
Dist.  Twp.,  65  "N.  W.,  974;  Epeneter         2  Code,  Sec.  3103. 
v.  Montgomery  County,  67  N.  W., 


§§  1121,  1122.]    MECHANICS'  LIENS  AND  CLAIMS.  337 

thereon  against  the  principal  and  sureties  for  any 
amount  found  due.3  It  is  held  that  there  is  no  law  which 
will  subject  the  indebtedness  of  a  county  to  a  contractor 
to  the  claim  of  a  sub-contractor  or  laborer  for  work  done 
on  a  county  building  or  bridge  under  the  contract,  and 
that  if  the  claim  provided  for  in  the  statute  is  not  filed 
within  the  thirty  days,  the  party  filing  it  can  not  claim  a 
lien.4  The  bond  will  not  be  invalid  if  executed  to  the 
parties  interested,  instead  of  to  the  public  corporation, 
nor  because  not  specifying  a  penal  sum,  and  in  any 
event  it  may  be  good  as  a  common  law  obligation.5 

§  1121.  Of  liens  for  opening,  developing  and  operat- 
ing coal  mines, — Every  laborer  or  miner  who  shall 
perform  labor  in  opening,  developing  or  operating  any 
coal  mine,  may  have  a  lien  upon  all  of  the  property  of 
the  person,  firm  or  corporation  owning  or  operating  such 
mine,  and  used  in  the  construction  or  operation  thereof, 
including  real  estate  and  personal  property,  for  the 
value  of  such  labor  to  the  full  amount  thereof,  to  be  se- 
cured and  enforced  in  the  same  manner  as  are  mechanics' 
liens.6 

§  1122.  "Who  may  have  a  mechanic's  lien.  —A  me- 
chanic's lien  is  a  right  to  a  remedy  against  property  and 
by  which  means  real  estate  may  be  subjected  to  a  specific 
lien  for  the  payment  of  the  claim,  and  a  mechanic's  lien 
is  an  insurable  interest.7  Every  person  who  does  or  per- 
forms any  work  or  labor  upon,  or  furnishes  any  materials, 
machinery  or  fixtures  for  any  building,  erection  or  other 
improvement  upon  land,  those  engaged  in  the  construc- 
tion or  repair  of  any  work  of  internal  improvement,  and 
those  engaged  in  grading  any  land  or  lot,  by  virtue  of 
any  contract  with  the  owner,  his  agent,  trustee,  contrac- 
tor or  sub-contractor,  upon  complying  with  the  require- 
ments of  the  statute,  has,  for  his  work  and  labor  done,  or 

»  Code,  Sec.  3104.  «  Code,  Sec.  3105. 

*  Breneman    v.    Harvey,    70-479,  1  Andrews    v.    Burdick,    62-714; 

and  cases  cited.  Carter  v.   Humboldt  Ins.  Co.,  12- 

s  Carnegie  v.   Hulbert,   70  Fed.,  287. 
209. 


338  MECHANICS'  LIEXS  AND  CLAIMS.  [ 

material,  machinery  or  fixtures  furnished,  a  lien  upon 
such  building,  erection  or  improvement  and  upon  the 
land  belonging  to  such  owner  on  which  the  same  is  situ- 
ated, to  secure  the  payment  of  such  work  or  labor  done,  or 
materials,  machinery  or  fixtures  furnished.8  One  who 
performs  labor  for  a  contractor  in  the  erection  of  a  build- 
ing may  establish  a  lien  against  the  building  therefor, 
though  no  express  contract  for  payment  was  made.9  And 
the  fact  that  such  laborer  also  acts  as  overseer  will  not 
affect  his  right  to  a  lien.10  So  a  lien  will  attach  in  favor 
of  one  who  has  furnished  labor  or  material  in  the  erec- 
tion of  lightning  rods.11  A  day  laborer  on  a  railroad  is 
entitled  to  a  lien  for  his  wages.12  But  such  lien  can  not  be 
enforced  against  the  road  if  the  contractor  has  fully  paid 
the  sub-contractor  under  whom  such  laborer  worked,  the 
full  amount  due  under  his  contract,  and  this  is  so  though 
the  railroad  company  may  owe  the  contractor  a  sum  ex- 
ceeding the  amount  of  the  laborer's  claim  against  the  sub- 
contractor.13 One  who  wrongfully  makes  improvements 
on  another's  land  can  not  defeat  a  mechanic's  lien  on  such 
improvements  by  showing  that  he  had  no  right  to  enter 
upon  the  land,  neither  can  a  purchaser  from  him  of  the 
improvements.14  One  can  not  have  a  lien  for  money  paid 
for  the  use  of  another.15  But  a  lien  will  not  lie  for  work 
or  material  for  a  sidewalk  upon  a  street.16  Nor  in  favor 
of  one  who,  under  a  contract  with  an  adjoining  owner, 
builds  a  party  wall  partly  on  the  latter's  land.17  An 
architect  who  prepares  plans  and  specifications  for  the 
improvement  of  a  building,  which  improvements  are 
made,  may  have  a  lien.18  Taking  an  appeal  will  not  affect 
the  lien.19  Nor  will  taking  a  mortgage  on  the  property 
unless  it  appears  that  it  was  the  intention  to  look  to 

«  Code,  Sec.  3089.  "  Stubbs  v.  Clarinda,  etc.,  65-513. 

•  Fcerder  v.  Wesner,  56-157.  «  Coenen  v.  Staub,  74-32. 

10  Same  as  No.  9.  "  Swift  v.  Calnan,  71  N.  W.,  233. 

11  Harris  v.  Schultz,  64-539.  is  Parsons  v.  Brown,  66  N.  W., 

12  Mornan  v.  Carroll,  35-22.  880;  see  Foster  v.  Tierney,  91-253. 
is  Utter  v.  Crane,  37-631.  ™  Julien  G.  L.  Co.  v.  Hurley,  11- 
i*  Lane  v.  Snow,  66-544.  520. 


§  1123.]  MECHANICS'  LIENS  AND  CLAIMS.  339 

such  security  alone.20    Nor  will  the  taking  of  a  note  for 
the  amount  of  the  claim.21 

§  1123.  When  no  lien  is  allowed  because  collateral 
security  is  taken. — No  person  is  entitled  to  a  lien  who, 
at  the  time  of  executing  or  making  the  contract  for  work, 
labor  or  material,  or  during  the  progress  of  the  work, 
erection,  building  or  improvement,  takes  any  collateral 
security  on  said  contract;  but  after  the  work  is  com- 
pleted, and  the  contractor  or  other  person  has  become 
entitled  to  claim  or  establish  a  lien,  the  taking  of  col- 
lateral or  other  security  will  not  affect  the  right  to  such 
lien  unless  the  new  security  is  by  express  agreement  given 
and  received  in  lieu  of  the  mechanic's  lien.22  But  the 
taking  of  a  promissory  note  for  the  amount  due  for  work 
done  or  materials  furnished  will  not  affect  the  right  of  a 
party  to  a  lien  unless  so  intended.23  And  the  mere  prom- 
ise of  a  subsequent  purchaser  of  property  subject  to  a 
mechanic's  lien,  in  con «' deration  of  forbearance  to  pay 
the  claim  secured  by  the  lien,  is  not  taking  collateral  se- 
curity.24 The  taking  of  collateral  security  after  the  ma- 
terial is  furnished,  though  the  building  be  not  completed, 
will  not  prevent  one  from  having  a  lien.25  And  one  who 
takes  a  negotiable  note  for  the  amount  of  his  claim,  and 
negotiates  it,  but  upon  its  dishonor  is  compelled  as  in- 
dorser  to  take  it  up,  may  enforce  his  original  right  to  a 
lien.26  And  if  the  right  to  a  mechanic's  lien  has  been  for- 
feited by  taking  collateral  security,  such  security  may  be 
surrendered  and  the  lien  by  agreement  of  parties  re- 
stored, and  when  so  restored  it  wTill  become  valid  and  ef- 
fective between  the  parties  or  those  subsequently  acquir- 
ing rights  in  the  property  as  though  no  security  had  been 
taken.27  The  fact  that  a  husband,  as  agent  for  his  wife, 

20  Gilchrist  v.  Gottschalk,  39-311.      v.  Taylor,  5-546;  Scott  v.  Ward,  4 

21  Green  v.  Ely,  2    G.    Gr.,    508;      G.  Gr.,  112. 

Mix  v.  Ely,  2  G.  Gr.,  513;  Logan  v.          24  Mervin  v.  Sherman,  9-331. 
Attix,  7-77.  25  Bissell  v.  Lewis,  56-231. 

22  Code,  Sec.  3088;  Atlantic  Trust         26  German    Bk.    v.    Schloth,    59- 
Co.  v.  Carbondale  Coal  Co.,  68  N.  316;  see  Howley  v.  Warde,  4  G.  Gr., 
W.,  697.  36;  Scott  v.  Ward,  4  G.  Gr.,  112. 

23  Logan  v.  Attix,  7-77;   Bonsall          27  Getchell  v.  Musgrove,  54-744. 


340  MECHANICS'  LIENS  AND  CLAIMS.     [§§  1124,  1125. 

contracts  for  material  to  be  used  in  the  erection  of  a 
building  on  her  land,  and  also  binds  himself  by  such  con- 
tract to  pay  therefor,  will  not  constitute  the  taking  of 
collateral  security  by  the  material-man,  so  as  to  defeat 
his  right  to  a  lien.28  Nor  will  the  fact  that  a  contract  for 
building  a  railroad  provides  that  money  specified  therein 
should  be  paid  by  citizens  of  a  county  through  which  the 
road  is  to  be  built.29 

§  1124.  Other  cases  in  which  the  right  to  a  lien  is 
denied. — The  lien  will  attach  only  for  work  or  labor  done 
and  materials  furnished.30  Breaking  sod  is  not  such  "an 
improvement"  upon  land  as  to  entitle  the  person  perform- 
ing such  labor  to  a  mechanic's  lien.31  Nor  is  the  build- 
ing of  a  sidewalk  in  the  street.32  Nor  will  it  lie  for  the 
cost  of  a  portion  of  a  partition  wall.33  It  has  been  held 
that  where  the  contract  for  work,  labor  or  materials  is 
made  with  a  person  having  no  title  to,  or  interest  in  the 
land,  the  lien  could  not  be  enforced.34  And  that  mere 
possession  of  the  realty,  without  right  or  interest  therein 
was  not  sufficient.35 

So  it  has  been  held  that  no  lien  will  lie  for  improve- 
ments voluntarily  made  on  another's  land,  because  there 
was  no  contract  with  the  owner  of  the  land.36  And  prior 
to  the  enactment  of  chapter  179,  laws  of  1884,  no  lien 
could  be  had  against  a  school  house,37  nor  against  a  build- 
ing owned  by  the  county  and  used  for  county  purposes,38 
nor  against  bridges  built  by  the  county.39 

§  1125.  Of  the  contract. — To  entitle  a  party  to  a  me- 
chanic's lien,  the  work  or  labor  must  have  been  done  or 
performed,  and  the  material  furnished,  under  a  con- 

28  Bissell  v.  Lewis,  56-231.  se  Wilkins  v.   Litchfleld,  69-465; 

20  Delaware  R.  C.  Co.  v.  Daven-  Littleton  Sav.  Bk.  v.  Osceola  Land 

port  and  St.  P.  R.  Co.,  46-406.  Co.,  76-660;  Templin  v.  C.,  B.  &  P. 

so  Brown  v.  Rodacker,  65-55.  R.  Co.,  73-548. 

si  Brown  v.  Wyman,  56-452.  37  Charnock  v.  Dist.  Twp.,  51-70. 

32  Coenen  v.  Staub,  74-32.  ss  Lewis    v.    Chickasaw  County 

as  Swift  v.  Calnan,  71  N.  W.,  233.  50-234;    Whiting  v.  Story  County, 

«*  Redman  v.  Williamson,  2-488.  54-81;  Breneman  v.  Harvey,  70-479, 

SB  Reed    v.    Huston,    12-35;     see  39  Loring  v.  Small,  50-271. 

Lane  v.  Snow,  66-544. 


§  1126.]  MECHANICS'  LIENS  AND  CLAIMS.  341 

tract40  There  need  be  no  express  agreement  that  the 
mechanic  is  to  have  a  lien  for  his  work  or  materials.41  The 
contract  need  not  be  in  writing,  and  it  would  seem,  in  cer- 
tain cases  at  least,  it  may  be  implied  from  knowledge 
possessed  by  the  parties.42  If  materials  are  furnished  for 
building  purposes  in  accord  with  an  agreement  or  under- 
standing with  the  parties  and  the  materials  are  so  used, 
the  seller  may  have  a  lien  therefor,  but  if  such  materials 
are  sold  from  time  to  time  in  the  course  of  trade  and 
nothing  said,  and  no  understanding  had  as  to  the  purpose 
for  which  they  are  to  be  used,  the  seller  will  not  be  en- 
titled to  a  lien.43  There  should  be  something  to  show  that 
the  materials  were  furnished  especially  to  be  used  in  or 
about  a  building.44  And  it  has  been  held  that  a  lien  on 
improvements  may  exist  without  any  contract  with  the 
owner  of  the  fee;  all  that  is  necessary  is  a*contract  with 
the  owner  of  the  improvements.  If  materials  are  fur- 
nished for  two  buildings,  it  is  not  necessary  to  show  that 
they  went  into  the  particular  building  on  which  it  is 
sought  to  establish  the  lien.45 

§  1126.  Of  liens  on  the  wife's  property  by  virtue  of 
contracts  made  with  the  husband.— Where  labor  was 
performed  on  the  wife's  house  under  a  contract  with  her 
husband,  as  her  agent,  for  her  use  and  benefit,  and  with 
her  knowledge  and  consent,  and  for  which  both  promised 
to  pay,  a  lien  exists  against  her  property.46  But  the 
agency  of  the  husband  will  not  be  presumed  from  the 
marital  relation  alone,  nor  from  the  fact  that  the  lumber 
was  purchased  by  the  husband  and  used  by  him  in  the 

40  Code,  Sec.  3089;  Logan  v.  At-  **  Coates  v.  Shorey,  8-416;  Jonea 
tix,  7-77;  Coates  v.  Shorey,  8-416;  v.  Swan,  21-181;  Stockwell  v.  Car- 
Neilson  v.  Iowa  E.  R.  Co.,  51-184;  penter,  27-119;  Miller  v.  Hollings- 
Jones  v.  Swan,  21-181;  Stockwell  worth,  33-224. 
v.  Carpenter,  27-119;  Conrad  v.  « Lewis  v.  Saylor,  73-504;  Will- 
Starr,  50-470.  iams  v.  Judd-Wells  Co.,  91-378; 

•*i  Jones  v.  Swan,  21-181;  Stock-  Bartlett  v.   Bilger,   92-732;    Roosa 

well  v.  Carpenter,  27-119;  Foerder  v.  Billingsley,  etc.,  Com.  Co.,  74-51; 

v.  Wesner,  56-157;  Carney  v.  Cook,  see  Bowman  v.  Newton,  72-90. 

80-747.  "Burdick     v.     Moore,     24-418; 

«  Neilson  v.  Iowa  B.  R.  Co.,  51-  Kidd  v.  Wilson,  23-464;   Frank  v. 

184.  Hollands,  81-164. 

«  Coates  v.  Shorey,  8-416. 


312  MECHANICS'  LIENS  AND  CLAIMS.  [§  1127. 

erection  of  a  house  upon  the  land  of  his  wife.47  When 
property  is  purchased  by  the  husband  to  improve  the  land 
of  the  wife,  and  it  is  so  used  with  her  acquiescence  in  the 
enhancement  of  her  separate  property,  with  full  knowl- 
edge on  her  part  that  it  is  not  paid  for,  and  of  all  the  facts, 
the  seller  will  have  an  equitable  lien  on  the  property  for 
the  value  of  the  materials  furnished.48  But  if  a  husband, 
against  his  wife's  protest,  purchases  lumber  on  his  own 
credit  and  uses  it  to  build  an  addition  to  a  barn  on  his 
wife's  land,  a  lien  does  not  attach  to  her  land  nor  to  the 
improvements  made  with  such  lumber  for  the  price  there- 
of.49 The  property  of  a  married  woman  is  subject  to  a 
lien  for  improvements  made  under  a  contract  with  her, 
or  by  any  one  authorized  to  contract  for  and  bind  her.50 
And  it  is  presumed  that  such  contracts  might  be  ratified 
by  the  wife,  even  though  the  one  making  them  had  no 
authority  so  to  do.51  It  is  said  that  where  a  wife  owns 
land  and  the  husband  erects  a  dwelling  house  thereon, 
that  the  establishment  of  a  lien  on  the  building  is  not  in- 
consistent with  her  ownership  of  the  land.52  While  mere 
knowledge  of  the  wife  that  the  husband  is  purchasing 
material  on  credit  which  is  being  used  in  constructing  a 
building  on  her  land  will  not  subject  such  land  to  a  me- 
chanic's lien  therefor.53  Where  the  wife  furnished  the 
husband  with  money  to  buy  lumber  for  a  house  and  he 
purchased  the  same  with  such  money  from  plaintiff, 
with  whom  he  had  a  general  account  for  lumber,  without 
directing  on  whose  account  the  money  paid  should  be 
applied,  the  seller  can  not  apply  payment  on  the  hus- 
band's general  account  and  claim  a  lien  on  the  property 
of  the  wife.54 

§  1127.    Extent  of  lien  generally. — The  entire  land 
upon  which  such  building,  erection  or  other  improvement 

47  Miller    v.    HolU—sworth,    33-     G.  Gr.,  435;   Bissell  v.  Lewis,  56- 
224,   and   36-163;    Price  v.   Seydel,     231. 

46-696;  Nelson  v.  Cover,  47-250.  «  Burdick  v.  Moulton,  53-761. 

48  Miller   v.    Hollingsworth,     36-         "  Estabrook  v.  Riley,  81-479. 
1B3;  see  Nelson  v.  Cover,  47-250.  "  Young  v.  Swan,  69  N.  W.,  566. 

49  Getty  v.  Tramel,  67-288.  "  Bartlett  v.  Mahlum,  88-329. 
BO  Greenough   v.   Wiggington,   2 


§1127.]  MECHANICS'  LIENS  AND  CLAIMS.  343 

is  situated,  including  as  well  that  part  of  the  land  not 
covered  with  the  building,  is  subject  to  the  lien  to  the 
extent  of  all  the  right,  title  and  interest  owned  therein 
by  the  owner  thereof,  for  whose  immediate  use  or  bene- 
fit the  labor  was  done  or  performed,  or  the  things  were 
furnished;  and  when  the  interest  owned  in  said  land  by 
the  owner  of  such  building,  erection  or  other  improve- 
ment is  only  a  leasehold  interest,  the  forfeiture  of  the  lease 
for  the  non-payment  of  rent,  or  for  non-compliance  with 
any  of  the  other  stipulations  therein,  will  not  forfeit  or 
impair  a  mechanic's  lien,  so  far  as  concerns  said  build- 
ings, erections  or  improvements,  but  the  same  may  be 
sold  to  satisfy  the  lien,  and  may  be  removed  within  thirty 
days  after  the  sale  thereof,  by  the  purchaser.55  So,  the 
lien  attaches  to  a  building,  for  materials  furnished  for 
its  erection,  on  land  held  by  the  vendee  under  contract 
of  purchase,  and  such  lien,  as  to  the  building,  is  prior  to 
the  vendor's  lien  for  unpaid  purchase  price,  but  the  ven- 
dor's lien  is  superior  on  the  land.56 

It  attaches  to  the  homestead.57  It  attaches  against  a 
party  having  possession  under  a  bond  for  a  deed,  and  a 
subsequent  procurement  of  the  full  legal  title  by  the 
holder  of  the  bond  will  not  affect  the  lien.58  And  it  is  said 
the  lien  may  be  enforced  when,  by  contract,  payment  was 
to  be  made  in  land  or  other  property.59  The  lien  attaches 
to  the  building  or  improvement  erected  with  the  mate- 
rials furnished,  but  does  not  follow  the  material  in  the 
hands  of  a  vendee  of  the  purchaser  and  attach  to  a  build- 
ing erected  by  him  out  of  such  material.60  But  a  lien  will 
attach  to  an  equitable  title  and  follow  it  into  the  hands 
of  any  one  to  whom  it  may  pass,  and  a  mere  substitution 
of  another  contract  for  that  under  which  the  property  is 
held  will  not  defeat  the  lien,  if  the  new  contract  was  given 
as  evidence  of  the  same  rights  which  were  held  under  the 
old.61  The  lien  having  once  attached  to  land,  will  remain 

55  Code,  Sec.  3090.  **  Same  as  No.  56. 

SB  Stock-well    v.    Carpenter,  27-         59  Riiey  v.  Ward,  4  G.  Gr.,  21. 
119;  Monroe  v.  West,  12-119.  e»  Heaton  v.  Horr,  42-187. 

67  Code,  Sec.  2975.  ei  Clark  v.  Parker,  58-509. 


344  MECHANICS'  LIENS  AND  CLAIMS.  [§  1127. 

thereon  after  the  improvements  have  been  destroyed  or 
removed.62  A  lien  for  materials  furnished  for  the  erec- 
tion of  a  house  will  not  cover  a  separate  house  standing 
on  the  same  undivided  lot,  but  is  confined  to  the  house 
for  which  the  materials  were  furnished  and  so  much  of 
the  lot  as  is  properly  appurtenant  thereto.63  Every  per- 
son for  whose  immediate  use  or  benefit  any  building, 
erection  or  other  improvement  was  made,  having  the  ca- 
pacity to  contract,  including  the  guardians  of  minors  or 
other  persons,  are  included  in  the  word  "owner."64  In 
section  3091  of  the  code,  it  is  provided  that  when  material 
has  been  furnished  or  labor  performed  in  the  construc- 
tion, repair  or  equipment  of  any  railroad,  canal,  viaduct 
or  other  similar  improvement,  the  lien  therefor  shall  ex- 
tend and  attach  to  the  erection,  excavation,  embank- 
ment, bridges,  road  bed  and  all  the  land  on  which  the 
same  may  be  situated,  including  rolling  stock  thereto  ap- 
pertaining and  belonging,  all  of  which,  except  the  right 
of  way,  constitute  the  building,  erection  or  improvement. 
Under  prior  laws  it  has  been  held  in  the  case  of  Bear  v. 
the  B.,  C.  K.  &  M.  R.  Co.,  48  Iowa,  619,  that  a  mechanic's 
lien  does  not  extend  to  the  whole  line  of  the  road,  and 
that  the  improvements  are  of  such  a  character  that  they 
can  not  be  sold  under  the  lien  and  removed  by  the  pur- 
chaser; that  the  lien  of  a  mechanic  for  repairs  on  a  com- 
pleted railroad  is  not  paramount  to  the  lien  of  a  mort- 
gage executed  after  the  commencement  and  before  the 
completion  of  the  road,  nor  when  the  improvements  con- 
stituted an  integral  part  of  the  road;  and  in  the  case  of 
Xelson  v.  The  Iowa  Eastern  R.  Co.,  51  Iowa,  184,  the 
court  held  that  a  mechanic's  lien  upon  a  railroad  would 
not  embrace  the  rolling  stock  thereon;  also  that  a  lien 
for  materials  furnished  for  the  construction  of  a  road 
covered  only  the  completed  portion  of  the  road;  but  the 
fact  that  the  road,  as  projected  when  the  materials  were 

02  Same  as  No.  61.  Carpenter,  27-119;  Monroe  v.  West 

es  Ewing  v.  Allen,  68  N.  W.,  702.      12-119;  Jameson  v.  Gile   67  N    W  ' 
e*  Code,  Sec.  3096;    Stockwell  v.      396. 


§  1128.]  MECHANICS'  LIENS  AND  CLAIMS.  345 

furnished,  was  not  fully  completed,  would  not  defeat  the 
lien. 

§  1128.  Of  priority  of  the  lien. — The  lien  takes  prior- 
ity as  between  two  or  more  persons  claiming  mechanic's 
liens  upon  the  same  property  according  to  the  order  of 
the  filing  of  the  statements  and  accounts  therefor.65  They 
take  priority  over  all  garnishments  upon  the  person  of 
the  owner  for  the  contract  debt  made  prior  or  subsequent 
to  the  commencement  of  the  furnishing  of  the  material 
or  performance  of  the  labor,  without  regard  to  the  date  of 
filing  the  claim  for  the  mechanic's  lien.66 

They  will  be  preferred  to  all  other  liens  and  incum- 
brances  which  may  attach  to  or  upon  such  buildings, 
erections  or  other  improvements,  or  either  of  them,  and 
to  the  land  upon  which  they  are  situated,  made  subse- 
quent to  the  commencement  of  said,  buildings,  erections 
or  other  improvements,  provided  that  the  rights  of  pur- 
chasers, incumbrancers  and  other  persons  who  acquire 
interests  in  good  faith  for  a  valuable  consideration,  and 
without  notice,  after  the  expiration  of  the  time  for  filing 
claims  for  liens,  shall  be  prior  to  the  claims  of  all  con- 
tractors or  sub-contractors  who  have  not,  at  the  time 
such  rights  and  interests  were  acquired,  filed  their  claims 
for  mechanic's  liens.67  Liens  for  material  or  for  work  and 
labor  including  those  for  additions,  repairs,  and  better- 
ments attach  to  the  buildings,  erections,  or  improve- 
ments for  which  they  were  furnished  or  done,  in  prefer- 
ence to  any  prior  lien,  incumbrance  or  mortgage  upon  the 
land  upon  which  such  erection,  building  or  improvement 
belongs  or  is  erected  or  put.  When  such  material  was 
furnished  or  labor  performed  for  the  erection  or  construc- 
tion of  an  original  and  independent  building,  erection  or 
other  improvement  commenced  since  the  attaching  or 
execution  of  such  prior  lien,  incumbrance  or  mortgage, 
the  court  may,  in  its  discretion,  order  and  direct  such 

65  Code,  Sec.  3095;  Robertson  v.         "  Code,  Sec.  3095;  see  Gilbert  v. 
Barrack,  80-538.  Tharp,  72-714. 

ee  Code,  Sec.  3095. 


346  MECHANICS'  LIENS  AND  CLAIMS.  [§  1128. 

building,  erection  or  improvement  separately  sold  under 
execution,  and  the  purchaser  may  remove  the  same  with- 
in such  reasonable  time  as  the  court  may  fix.  But  if  the 
court  finds  that  said  building  should  not  be  separately 
sold  it  will  take  an  account  and  ascertain  the  separate 
values  of  the  land,  and  the  erection,  or  building  or  other 
improvement  and  order  the  whole  sold  and  distribute  the 
proceeds  of  sale  so  as  to  secure  to  the  prior  mortgage,  or 
other  lien,  priority  upon  the  land,  and  to  the  mechanic's 
lien  priority  upon  the  building,  erection  or  other  improve- 
ment. If  the  material  furnished  or  labor  performed  was 
for  an  addition  to,  repairs  of  or  betterments  upon  build- 
ings, erections  or  other  improvements,  the  court  will  take 
an  accounting  of  the  values  before  such  material  was  fur- 
nished or  labor  performed,  and  the  enhanced  value  caused 
by  such  addition,  repairs  or  betterments,  and  upon  a  sale 
of  the  premises,  distribute  the  proceeds  of  the  sale  so  as 
to  secure  the  prior  mortgagee  or  lien  holder  priority  upon 
the  land  and  improvements  as  they  existed,  prior  to 'the 
attaching  of  the  mechanic's  lien,  and  to  the  mechanic's 
lien  holder  priority  upon  the  enhanced  value  caused  by 
such  additions,  repairs  or  betterments,  and  in  case  the 
premises  do  not  sell  for  more  than  sufficient  to  pay  off  the 
prior  mortgage  or  other  lien,  the  proceeds  will  be  applied 
on  such  prior  mortgage  or  other  liens.68  It  has  been  held 
that  a  mechanic's  lien  had  priority  on  the  building  over 
the  lien  of  a  vendor  for  the  purchase  money  of  the  land.69 

And  under  a  prior  statute  it  was  held  a  mechanic's  lien 
for  work  or  materials  furnished  in  making  additions  or 
repairs  to  a  building,  would  not  be  a  prior  lien  on  the 
building  to  a  mortgage  which  had  existed  on  the  premises 
before  such  mechanic's  lien. 

But  the  mechanic's  lien  would  have  priority  as  to  an 
independent  structure  on  the  land.70  And  it  is  said  that 

68  Code,  Sec.  3095;   and  German  Frost  v.  Clark,   82-298;    James  v. 
Bk.  v.  Schloth,  59-316;    Curtiss  v.  Gile,  67  N.  W.,  396;  and  see  Town- 
Broadwell,  66-662;    Miller  v.  Seal,  send  v.  White,  71  N.  W.,  337. 
71-392.  ™  Getchell  v.  Allen,  34-559;  Equi- 

69  Stockwell  v.  Carpenter,  27-119;  table  L.  Ins.  Co.  v.  Slye,  45-615; 


§  1128.]  MECHANICS'  LIENS  AND  CLAIMS.  347 

a  mechanic's  lien  attaches  from  the  commencement  of 
the  building  or  improvement,  from  the  furnishing  of  the 
first  item  therefor,  and  takes  precedence  over  a  mortgage 
executed  after  that  time,  although  the  particular  work 
or  material  for  which  the  lien  was  claimed  was  not  done 
or  promised  until  after  the  making  and  recording  of  the 
mortgage.71  That  a  party  furnishing  materials  or  ma- 
chinery for  a  building  by  the  filing  of  his  statement  and 
claim  for  a  lien  acquires  one  upon  the  entire  structure, 
and  what  he  furnishes  becomes  in  turn  subject  to  all 
liens  of  his  fellow  mechanics  which  attached  earlier.72  A 
mechanic's  lien  will  have  priority  over  a  mortgage  exe- 
cuted and  recorded  within  ninety  days  from  the  date  of 
the  last  item  of  work  done  or  material  furnished.73  Where 
a  mechanic's  lien  was  not  filed  against  a  railroad  until 
twenty-six  months  after  the  materials  were  furnished, 
and  a  sale  of  the  road  made  after  the  ninety  days  within 
which  the  lien  should  have  been  filed,  held,  that  the  pur- 
chaser at  such  sale  took  the  road  discharged  of  the  lien.74 
And  in  the  same  case  it  was  held  that  a  mechanic's  lien 
upon  a  railroad  for  the  construction  of  a  new  bridge  and 
abutment  in  place  of  an  old  one  was  not  a  paramount 
lien  to  a  mortgage  upon  the  road  previous  to  the  erection 
of  such  new  bridge,  and  that  the  lien  of  a  mechanic  for  re- 
pairs on  a  completed  railway  is  not  paramo.unt  and  su- 
perior to  the  lien  of  a  mortgage  executed  after  the  com- 
mencement, and  before  the  completion  of  the  road,  nor 
will  the  lien  of  the  mechanic  upon  the  particular  work 
performed  by  him  take  precedence  of  such"  mortgage, 
when  the  improvements  he  has  made  constitute  an  inte- 
gral part  of  the  road.75  The  provisions  of  paragraph  4 

O'Brien  v.  Pettis,  42-293;  see  Stock-  Evans  v.   Gripp,  35-371;    see   Gil- 
well  v.  Carpenter,  27-119;  Fletcher  bert  v.  Tharp,  72-714. 
v.  Kelley,  88-475;    Bartlett  v.   Bil-  74  Bear  v.  B.,  C.  R.  &  M   R    Co 
ger,  92-732;  Luce  v.  Curtis,  77-3  <7.  48-619. 

71  Neilson  v.  Iowa  E.  R.  Co.,  44-  75  Bear  v.  B.,  C.  R.  &  M.  Co.,  48- 
71;    Iowa  Mortgage   Co.  v.   Shau-  619;   (this  case  was  decided  on  the 
quest,  70-124.  law  as  it  stood  prior  to  the  taking 

72  Equitable  L.  Ins.  Co.  v.  Slye,  effect  of  Chapter  8  of  Title  15  of  the 
45-615.  Code.) 

73  Lamb    v.    Hanneman,    40-41; 


348  MECHANICS'  LIENS  AND  CLAIMS.  [§  1128. 

of  section  3095  of  the  code,  have  no  application  when  the 
mortgage  has  been  foreclosed  and  the  premises  sold 
thereunder  before  the  materials  for  which  the  lien  is 
claimed  have  been  furnished.  In  such  case  the  statutory 
right  to  redeem  is  the  only  right  which  can  be  enforced.76 
Under  a  prior  law  it  was  held  that  the  purchaser  of  a 
building  sold  on  a  mechanic's  lien  could  only  remove  the 
same  from  the  leased  premises  on  the  same  terms  that 
the  tenant  could,  and  if  one  of  the  conditions  of  the  lease 
to  the  tenant  was  that  he  could  not  remove  the  building- 
while  in  arrears  for  rent,  then  the  purchaser  must  pay 
the  rent  before  he  can  remove  it.77  When  plaintiffs  under 
a  contract  with  "W.  &  Son"  furnished  materials  for  the 
enlargement  of  a  building  occupied  by  them,  and  after- 
ward "W."  mortgaged  the  premises  to  "E."  plaintiffs,  in 
an  action  to  foreclose  their  lien,  sought  to  have  it  estab- 
lished as  superior  to  "E.'s"  mortgage,  but  they  failed  to 
show  that  "W.  &  Son"  had  such  an  interest  in  the  prop- 
erty that  a  mechanic's  lien  would  attach  thereto;  it  was 
held  the  evidence  did  not  warrant  a  decree  making  their 
alleged  lien  superior  to  the  mortgage.78 

October  20,  1882,  "B."  executed  a  deed  of  trust  upon 
certain  real  estate  to  secure  an  existing  debt.  Between 
November  9,  1882,  and  April  3,  1883,  the  plaintiffs  fur- 
nished "B."  materials  for  the  erection  of  a  building  on  the 
real  estate.  June  4,  1883,  the  property  was  seized  upon 
an  attachment  at  the  suit  of  "P."  v.  "B."  July  3,  1883, 
plaintiffs  filed  their  statement  for  a  mechanic's  lien;  it 
was  held  that  the  deed  of  trust  was  superior  to  the  me- 
chanic's lien  on  land  and  improvements;  that  the  me- 
chanic's lien  was  superior  to  the  attachment,  because, 
while  the  statement  for  the  lien  was-not  filed  within  nine- 
ty days,  as  required  by  statute,  "P.'s"  right  accrued  before 
the  expiration  of  the  ninety  days,  and  by  the  express  lan- 
guage of  the  statute,  it  is  only  purchasers  and  incum- 
brancers  in  good  faith,  without  notice,  whose  rights  ac- 

™  Shepherdson   v.   Johnson,   60-          "  Oswold  v.  Buckholtz,  13-506. 
239.  ™  Dierks  v.  Walrod,  66-354. 


§  1128.]  MECHANICS'  LIENS  AND  CLAIMS.  349 

crue  after  ninety  days,  that  are  not  defeated  by  the  lien  in 
such  cases.79 

As  between  a  party  claiming  a  lien  who  has  not  filed 
his  statement  until  after  the  expiration  of  the  ninety 
days,  and  a  prior  mortgagee  whose  mortgage  was  not  exe- 
cuted until  after  the  expiration  of  such  period,  the  bur- 
den of  proving  that  the  mortgagee  had  notice  at  the  time 
of  taking  his  mortgage,  of  the  existence  of  the  mechanic's 
lien,  is  on  the  one  claiming  such  lien.80  In  a  case  where 
the  lessees  of  a  mill  under  verbal  lease  for  five  years,  put 
in  machinery  and  fixtures  and  afterward  gave  a  chattel 
mortgage  thereon,  it  was  held  that  those  furnishing  the 
machinery  who  filed  their  statement  in  time,  had  a  lien 
upon  it  prior  to  the  mortgage,  even  though  such  fixtures 
were  chattel  property.81  If  a  contract  on  which  a  lien  is 
claimed  does  not  provide  for  interest,  or  attorney's  fees, 
the  parties  can  not  enter  into  a  contract  covering  such 
items  which  will  be  binding  as  against  a  mortgage  exe- 
cuted after  the  lien  attached  and  prior  to  the  making  of 
such  supplemental  contract.82  If  one  goes  into  posses- 
sion of  property  subject  to  a  vendor's  lien,  it  is  prior  to  a 
mechanic's  lien  for  materials  subsequently  furnished.83 
One  acquiring  a  mechanic's  lien  is  charged  with  notice  of 
all  liens  effecting  the  property  covered  by  it,  whether 
they  be  recorded  or  not,  and  such  lien  holders,  not  made 
parties  to  an  action  to  foreclose  a  mechanic's  lien,  will 
not  be  concluded  by  the  decree,  which  is  entered  after 
the  recording  of  such  lien.84 

If  the  holder  of  a  mechanic's  lien  buys  the  property 
covered  by  it  at  a  judicial  sale  under  a  judgment  on  such 
lien,  the  lien  will  not  be  merged,  so  as  to  render  it  subor- 
dinate to  an  intervening  mortgage,  unless  such  was  the 
intention  of  the  parties.85  A  mechanic's  lien  for  material 
for  improvements  on  leased  premises  will  be  paramount 

79  Curtis  v.  Broadwell,  66-662.  ss  Logan  v.  Taylor,  20-297. 

*o  Hoskins  v.  Carter,  66-638,  and  84  Nashua  Trust  Co.  v.  W.  S.  Ed- 
cases  cited.  wards  Mfg.  Co.,  68  N.  W.,  587. 

si  Nordyke  v.  Hawkeye  W.  M.  ss  Delaware  R.  C.  Co.  v.  Daven- 

Co.,  53-521.  port  &  St.  P.  R.  Co.,  46-406. 

82  Bissell  v.  Lewis,  56-231. 


350  MECHANICS'  LIENS  AND  CLAIMS.    [§§  1129,  1130. 

to  the  landlord's  lien  for  rent  and  to  a  chatel  mortgage 
taken  by  the  landlord  on  the  improvements  before  action 
was  begun  to  establish  the  mechanic's  lien.86  But  a  me- 
chanic's lien  will  be  inferior  to  a  mortgage  filed  for  record 
before  work  on  the  improvements  began.87  Further  as  to 
questions  of  priority.88 

§  1129.  When  the  lien  attaches — Its  continuance. 
—Whatever  is  done  by  the  mechanic  under  his  contract, 
dates,  as  to  his  lien,  from  the  day  he  commences  work, 
and  not  from  the  time  of  actual  performance  of  the  sev- 
eral parts  of  the  undertaking.89  And  the  lien  for  all  ma- 
terials furnished  attaches  when  the  first  item  is  fur- 
nished.90 The  lien  continues  for  ninety  days  after  all  the 
work  is  done,  or  all  the  material  furnished  under  the  con- 
tract.91 And  as  between  the  parties  to  the  contract,  the 
lien  may  continue  for  a  longer  period,  and  so  it  may  as 
against  one  whose  rights  against  the  property  accrued 
before  the  expiration  of  the  ninety  days.92  The  doctrine 
above  stated,  that  the  lien  attaches  when  the  work  first 
commences,  or  the  first  material  is  furnished,  applies 
when  a  contract  is  shown,  and  the  work  is  done  continu- 
ously; not  to  cases  where  the  work  is  done  under  differ- 
ent contracts,  or  where  such  time  intervenes  as  to  raise  a 
presumption  that  the  work  had  ceased,  and  the  contract 
been  completed.93 

§  1130.  Of  preserving  the  lien. — The  law  keeps  the 
lien  alive  for  ninety  days  after  the  work  under  the  con- 
tract is  completed,  or  the  materials  are  all  furnished; 
but  to  preserve  it  after  the  ninety  days,  the  person  claim- 
ing the  lien,  whether  contractor  or  sub-contractor,  must 
file  with  the  clerk  of  the  district  court  of  the  county  in 
which  the  building,  erection  or  improvement  to  be 

SB  National   L.   Co.   v.    Bowman,  sa  Moore  v.  West,  12-119. 

77-706.  so  Jones  v.   Swan,  21-181;    Dela- 

ST  Bartlett  v.  Bilger,  92-732.  ware  R.  C.  Co.  v.  Davenport  &  St. 

ss  Eagle  Iron  Works  v.   Des  M.  P.  R.  Co.,  46-406;  Conrad  v.  Starr, 

S.  R.  Co.,  70  N.  W.,  193;   Kiene  v.  50-470. 

Hodge,  90-212;   Luce  v.  Curtis,  77-  si  Code,  Sees.  3092,  3093. 

347;  Townsend  v.  White,  71  N.  W.,  92  Code,  Sees.  3092,  3093;    Curtis 

337;    Iowa  Mortgage  Co.  v.  Shau-  v.  Broadwell,  66-662. 

quest,  70-124.  93  Jones  v.  Swan,  21-181. 


§  1130.]  MECHANICS'  LIENS  AND  CLAIMS.  351 

charged  with  such  lien  is  situated,  a  just  and  true  state- 
ment or  account  of  the  demand  due  him  after  allowing 
all  credits  setting  forth  the  time  when  such  material  was 
furnished  or  labor  performed,  and  when  completed,  and 
containing  a  correct  description  of  the  property  to  be 
charged  with  the  lien,  and  verified  by  affidavit.  Such 
verified  statement  must  be  filed  by  a  principal  contractor 
within  ninety  days,  and  by  a  sub-contractor  within  thirty 
days  from  the  date  on  which  the  last  of  the  material  was 
furnished  or  the  last  of  the  labor  performed.  But  a  fail- 
ure or  omission  to  file  the  same  within  the  periods  above 
stated  will  not  defeat  the  lien  except  as  against  purchas- 
ers or  incumbrancers  in  good  faith  without  notice,  whose 
rights  accrued  after  the  thirty  or  ninety  days,  as  the  case 
may  be,  and  before  any  claim  for  the  lien  was  filed.  But 
when  the  lien  is  claimed  upon  a  railway,  the  sub-con- 
tractor has  sixty  days  from  the  last  day  of  the  month  in 
which  such  labor  was  done,  or  material  furnished,  within 
which  to  file  his  claim  therefor.94  When  a  mechanic's 
lien  which  is  junior  to  a  mortgage  on  the  premises  is  filed 
before  the  expiration  of  the  ninety  days,  it  will  not  be 
prejudiced  by  the  commencement  of  a  suit,  to  foreclose 
the  mortgage  prior  to  such  filing,  nor  will  such  lien-holder 
be  affected  by  such  foreclosure  proceeding  to  which  he  is 
not  made  a  party.95  If  the  party  entitled  to  the  lien  fails 
to  file  the  same  until  after  the  lapse  of  the  ninety  days, 
and  the  property  in  the  meantime  passes  to  an  innocent 
purchaser,  the  lien  can  not  be  enforced  against  such  pur- 
chaser, and  this  is  so  where  the  vendee  takers  the  prop- 
erty under  a  bond  for  a  deed  and  makes  no  actual  pay- 
ments thereon,  but  executes  his  notes  for  the  purchase 
price.96  If  a  sub-contractor  fails  to  do  what  is  required 
of  him  by  statute,  it  will  be  conclusively  presumed  that 
he  has  waived  his  right  to  a  lien.97  Against  the  holders 

94  Code,    Sec.    3092;    Sanuval    v.         95  Jones  v.  Hartsock,  42-147. 
Ford,   55-461;    Jones  v.   Swan,   21-          96  Weston  v.  Dunlap,  50-183. 
181;     Ewing     v.     Folsom,     67-65;          »?  Brown  v.  Smith,  55-31. 
Jones,  etc.,  Lumber  Co.  v.  Murphy, 
64-165. 


352  MECHANICS'  LIENS  AND  CLAIMS.  [§  1130. 

of  other  existing  liens  it  is  not  essential  to  the  validity  of 
a  mechanic's  lien  that  a  statement  and  claim  therefor 
should  be  filed  with  the  clerk.98  A  sub-contractor  on  a 
railroad  to  secure  a  mechanic's  lien  must  file  his  claim 
within  sixty  days  from  the  last  day  of  the  calendar  month 
in  which  the  work  was  performed. 

The  word  "done"  in  the  statute  has  reference  to  the 
time  of  the  performance  of  the  work  and  not  to  the  time 
when  the  work  of  the  sub-contractor  is  completed,  and 
each  month's  work  for  this  purpose  is  considered  as  sep- 
arate from  that  of  the  other  months."  It  is  said  that 
one  who  has  actual  notice  when  taking  a  conveyance 
that  material  has  been  furnished  for  a  building  and  has 
not  been  'paid  for,  cannot  take  advantage  of  the  negli- 
gence on  the  part  of  the  claimant  who  has  failed  to  file 
his  statement  for  a  lien.1  If  a  lien  is  claimed  for  mate- 
rial furnished  for,  and  used  in,  a  building  within  ninety 
days  prior  to  the  time  it  is  asserted,  such  claim  cannot 
be  enforced  against  a  purchaser  of  the  property  without 
proof  that  the  material  was  used  in  the  particular  build- 
ing.2 The  statement  filed  for  the  lien  must  be  a  FJ_ate- 
ment  or  account  of  the  demand  due  the  plaintiff  and 
must  show  the  amount  of  the  account  on  which  the  de- 
mand is  founded.3  Under  the  revision  it  was  held  that 
the  name  of  the  owner  of  the  property  against  which  the 
lien  was  claimed,  need  not  be  set  out  in  the  statement, 
and  when  the  owner  had  died  before  the  filing  of  the 
statement,  it  was  held  sufficient  to  make  out  the  state- 
ment against  the  estate,  though  the  names  of  the  heirs 
owning  the  property  were  not  stated.4  When  a  sub- 
contractor filed  a  statement  and  claim  for  a  mechanic's 
lien  and  included  therein  his  account  for  money  received 
and  disbursed  for  his  immediate  employers,  with  his  ac- 
count for  labor  performed  by  him,  and  claimed  a  lien  for 

»s  Bissell  v.  Lewis,  56-231.  Ewing  v.   Folsom,   67-65;    Hug  v. 

»9  Sandval  v.  Ford,  55-461.  Hintrager,     80-359;     Wetmore     v. 

1  Lee  v.  Hoyt,  70  N.  W.,  95.  Marsh,      81-677;       Novelty      Iron 

2  Roose  v.  Billingsly,  etc.,  Com.  Works   v.   Capital   City   Oat   Meal 
Co.,  74-51.  Co.,  88-524. 

s  Valentine   v.    Rawson,    57-179;          *  Welch  v.  McGrath,  59-519. 


§  1130.]  MECHANICS'  LIENS  AND  CLAIMS.  353 

a  general  balance  which  was  greater  than  the  amount 
actually  due  him  for  labor,  and  such  facts  appeared  on 
the  face  of  his  statement,  it  was  held  the  claim  filed  wras 
not  a  "just  and  true  statement,"  as  required  by  statute, 
and  he  was  not  entitled  to  a  lien.5  But  see  Chase  v.  Gar- 
ver  Coal  &  Mining  Co.,  90  Iowa,  25.  As  to  defective  de- 
scription of  the  property.6  As  to  mistakes  in  description 
and  the  effect  thereof.7  Unintentional  mistakes  in  the 
account  will  not  defeat  the  lien,  but  it  would  be  other- 
wise if  the  account  was  erroneously  stated  with  intent 
to  defraud.8  If  one  indebted  to  a  lumber  dealer  on  two 
accounts  for  material  for  two  different  buildings  makes 
a  payment  which  is  first  applied  by  the  creditor  to  one 
account  and  afterward  to  the  other,  in  the  absence  of 
mistake,  the  lien  under  the  first  account  is  released  to 
the  extent  of  such  payment.9  The  statement  for  a  lien 
may  be  filed  by  one  of  the  members  of  a  firm,  but 
whether  a  statement  filed  after  the  assignment  of  the 
claim  but  in  the  name  of  the  assignor,  is  sufficient, 
qua3re.10  Where,  by  agreement  between  the  owner  and 
contractor,  a  claim  which  the  former  held  against  the 
latter  was  to  be  allowed  as  a  payment  on  the  last  in- 
stallment to  be  paid  under  the  contract,  and  the  sub-con- 
tractor's claim  for  a  lien  was  filed  more  than  thirty  days 
after  the  last  item  in  his  account,  it  was  held  he  could 
recover  only  what  remained  due  from  the  owner  to  the 
contractor  after  deducting  the  said  claim.  Under  a 
prior  statute  it  was  held  that  a  mechanic's  lien  for  labor 
or  material  held  good  against  intervening  incumbrances 
for  ninety  days  from  the  date  of  the  last  item  without 
filing  a  statement  or  claim. 

After  that  time  the  filing  was  necessary  to  preserve 
the  priority  of  the  lien.11    And  it  was  held  under  chapter 

5  Stubbs  v.  Clarinda,  etc.,  65-513.  « Green     Bay     Lumber     Co.     v. 

e  Chicago  Lumber  Co.  v.  Des  M.  Miller,  62  N.  W.,  742. 

D.   P.,    65   N.   W.,   1017;    Roose  v.  »  Chicago  Lumber  Co.  v.  Woods, 

Billingsly,  etc.,  Com.  Co.,  74-51.  53-552. 

7  Bissell   v.  Lewis,  56-231;    Gray  10  Ford  v.  Ind.  Dist.,  46-294. 

v.  Dunham,  50-170;  Nat'l  L.  Co.  v.  "Noel  v.  Temple,  12-276;  Jones 
Bowman,  77-706. 
Vol.  n—23 


354  MECHANICS'  LIENS  AND  CLAIMS.  [§  1130. 

49,  laws  of  1874,  that  the  requirement  of  that  statute 
that  the  written  settlement  with  the  sub-contracor 
should  be  given  to  the  contractor  by  the  laborer  claiming 
the  lien,  was  complied  with  by  filing  a  settlement  with 
the  clerk  of  the  district  court  within  the  thirty  days  al- 
lowed for  filing  the  lien.12  When  the  statement  of  the 
account  was  made  in  the  name  of  the  plaintiffs  and  the 
affidavit  for  the  lien  was  made  by  the  agent  at  the  place 
where  the  material  was  sold,  and  stated  that  he  was  the 
agent  of  plaintiffs,  that  he  sold  the  material,  and  there 
was  due  him  a  sum  specified,  and  claimed  a  lien  there- 
for, it  was  held  that  it  was  a  claim  for  a  lien  by  the  plain- 
tiffs and  not  by  the  agent13 

So  if  the  account  is  made  out  against  the  husband 
alone  when  the  property  is  owned  by  the  wife  it  will  not 
defeat  the  lien,  when  notice  of  the  lien  filed,  correctly 
described  the  property  and  claimed  the  lien  against  both 
husband  and  wife.14  The  lien  as  against  the  owner  of 
the  property  is  not  defeated  by  a  failure  to  file  the  state- 
ment with  the  clerk  of  the  district  court  within  ninety 
days  from  the  time  the  work  was  done  or  materials  fur- 
nished.15 Below  is  given  a  form  of  account  for  mechan- 
ic's lien  which  can  be  varied  to  suit  the  circumstances  of 
each  particular  case;  it  will  be  noticed,  however,  that 
the  affidavit  must  be  substantially  the  same  in  all  cases. 

FORM  OF  STATEMENT  OF  ACCOUNT  FOR  MECHANIC'S  LIEN. 


,  in  account  with 

1887,  Dr. 

(1)  January  2d,  to 

(2)  February  5th,  to.. 

(3)  March  15th,  to 


v.  Swan,  21-181;   Evans  v.  Tripp,  is  Lamb  v.  Hanneman,  40-41. 

35-371;    Chicago   L.    Co.   v.   D.   M.  i*  Burdick  v.  Moon,  24-418;  Kidd 

D   P   Co.,  65  N.  W.,  1017.  v.  Wilson,  23-464. 

12  Bundy  v.  K.  &  D.  M.  R.  Co.,  is  Kidd  v.  Wilson,  23-464. 
49-207. 


§  1131.]  MECHANICS'  LIENS  AND  CLAIMS.  355 


Cr. 

(4)  February  10th,  by  cash. 

(5)  March  20th,  by  cash... 

(6)  May  1st,  by  cash 


5 

Balance  due  ? 

State  of  Iowa,        ) 
County.       f  ss< 

,  being  duly  sworn  says,  that  on  the day  of ,  18 — , 

he  made  a  contract  with  one to  furnish  materials  (or  labor,  ma- 
chinery or  fixtures,  as  the  case  may  be)  for  a  certain  (building,  erection 
or  other  improvement,  as  the  case  may  be)  situated  upon  the  following 

described  land  of  which  the  said was  then  and  is  now  (or  as  the 

case  may  be)  the  owner,  in  (fee  simple,  or  if  it  be  a  less  interest  state 
it,)  to  wit  (describe  the  land) ;  that  under  and  by  virtue  of  said  contract 
the  affiant  furnished  (materials,  or  labor  and  machinery  or  fixtures,  as 
the  case  may  be)  for  said  (building,  erection  or  other  improvement)  as 
specified  in  the  above  account,  at  the  respective  dates,  and  at  and  for  the 
respective  prices,  stated  in  said  account;  that  said  account  is  a  just  and 
true  account  of  the  (labor  done,  or  materials,  machinery,  etc.,  as  the 
case  may  be)  aforesaid,  and  there  is  due  and  owing  him  thereon  after 

allowing  all  credits,  the  sum  of dollars,  for  which  he  claims  a 

mechanic's  lien  upon  said  (building,  erection  or  improvement,  as  the 
case  may  be)  including  the  land  on  which  the  same  is  situated. 


Subscribed  and  sworn  to  before  me,  and  in  my  presence  by  the  said 

this day  of ,  18—. 

[Seal.]  .        ,  notary  public, 

in  and  for county,  Iowa. 

§  1131.  Of  the  duties  of  the  clerk.— It  is  the  duty 
of  the  clerk  when  the  account  or  statement  is  filed  in  his 
office  to  indorse  thereon  the  date  and  hour  of  filing  and 
make  an  abstract  thereof  in  a  book  kept  by  him  for  that 
purpose  and  properly  indexed,  containing  the  date  and 
hour  of  its  filing,  the  name  of  the  person  filing  the  lien, 
the  amount  of  the  lien,  the  name  of  the  person  against 
whom  the  lien  is.  filed,  and  a  description  of  the  property 
to  be  charged  with  the  lien.16 

But  it  was  held  under  the  revision,  section  1851,  which 
is  similar  to  the  provisions  of  the  present  law,  that  the 
requirement  that  the  clerk's  abstract  should  contain  the 

is  Code,  Sec.  3100;  Welch  v.  McGrath,  59-519;  Ewing  v.  Folsom,  67-65. 


356  MECHANICS'  LIENS  AND  CLAIMS.    [§§  1132,  1133. 

name  of  the  person  against  whose  property  the  lien  was 
filed,  only  required  that  it  shall  contain  the  name  of  the 
person  against  whom  the  account  was  filed,  and  the 
claim  for  a  lien  was  made,  and  it  did  not  require  that  the 
claim  should  state  the  name  of  the  owner  of  the  property 
against  which  the  lien  was  claimed;  and  when  the  per- 
son against  whom  the  claim  existed  was  dead,  the  claim 
was  properly  filed  as  against  the  administrator  of  his 
estate,  without  naming  the  heirs  who  were  the  owners 
of  the  property  against  which  it  was  sought  to  establish 
the  lien.1T  When  a  claim  for  a  lien  was  marked  "filed," 
over  the  signature  of  one  who  appeared,  from  a  jurat  at- 
tached and  belonging  to  the  same  paper,  to  be  clerk  of 
the  district  court,  it  was  held  that  it  appeared  prima 
facie  that  the  paper  was  filed  by  the  clerk  of  the  district 
court.18 

§  1132.  By  whom  and  in  what  court  liens  may 
be  enforced. — Any  person  having  filed  a  claim  for  a 
mechanic's  lien,  and  being  entitled  to  such  lien,  may 
bring  an  action  to  enforce  the  same  in  the  district  or  su- 
perior court  of  the  county  wherein  the  property  to  be 
affected  by  the  lien  is  situated,  and  a  like  action  may  be 
brought  on  any  bond  given  in  lieu  of  a  lien.19  Suit  to 
enforce  a  lien  may  be  brought  by  one  who  becomes  the 
owner  of  the  debt  by  assignment,  though  the  mere  in- 
choate right  to  a  lien  is  not  assignable  so  as  to  vest  in  the 
assignee  the  right  to  file  and  perfect  the  same.20  And 
in  an  action  in  equity  to  enforce  a  mechanic's  lien  the 
court  may  render  a  judgment  on  the  account,  though  it 
does  not  find  that  plaintiff  is  entitled  to  an  equitable 
remedy.21 

§  1133.  Who  made  defendants. — In  an  action  to 
enforce  a  mechanic's  lien,  the  party  against  whom  it  is 
sought  to  enforce  the  contract  must,  and  all  other  per- 

IT  Welsh  v.  McGrath,  59-519.  3099;    Merchant   v.    Ottumwa,    54- 

is  Ewing  v.  Folsom,  67-65.  451;    First   Nat.    Bk.   v.    Day,    52- 

19  Code,  Sec.  3098.  680,  and  64-118. 

20  Brown  v.  Smith,  55-31;  Lang-  21  Green  Bay  L.  Co.  v.  Miller,  62 
an    v.    Sankey,  55-52;     Code,  Sec.  N.  W.,  742. 


§§  1134,  1135.]  MECHANICS'  LIENS  AND  CLAIMS.  357 

sons  interested  in  the  matter  in  controversy  and  in  the 
property  charged  with  the  lien  may  be  made  parties  de- 
fendant, and  if  not  made  parties,  they  will  not  be  bound 
by  the  proceedings.22  And  the  owner  of  real  property, 
on  which  a  mechanic's  lien  is  sought  to  be  established, 
is  a  necessary  party  to  an  action  for  that  purpose.23 

Other  incumbrances  of  the  same  kind,  who  hold  liens 
which  are  junior  to  the  lien  of  plaintiff,  must  be  made 
defendants,  or  they  will  not  be  bound  by  the  proceed- 
ings; and,  while  mortgagees  and  judgment  creditors 
may,  at  the  option  of  the  plaintiff,  be  made  parties,  yet 
the  better  practice  is  to  make  all  persons  defendants 
who  have  or  claim  liens  which  are  junior  to  plaintiff's 
lien. 

§  1134.  When  lien  will  be  forfeited, — Upon  the 
written  demand  of  the  owner,  his  agent  or  contractor, 
served  upon  the  person  claiming  the  lien,  the  action  for 
the  enforcement  of  the  lien  must  be  commenced  within 
thirty  days  thereafter  or  the  lien  will  be  .forfeited.24 
And  where  there  was  an  attempt  made  to  commence  the 
action  within  the  thirty  days,  but  the  notice  served  was 
void  because  not  stating  the  term  at  which  the  defend- 
ant was  required  to  appear,  it  was  held  that  another  no- 
tice, served  after  the  expiration  of  the  thirty  days,  to 
which  defendant  appeared,  was  not  in  compliance  with 
the  law,  and  the  lien  could  not  be  established.25 

§  1135.  Of  pleadings,  practice,  etc. — Actions  to  en- 
force mechanic's  liens  must  be  prosecuted  by  equitable 
proceedings,  and  no  other  cause  of  action  cau  be  joined 
therewith.26  But  it  has  been  held  that  where  several 
parties  commenced  actions  against  a  common  defendant 
to  enforce  mechanic's  liens,  that  it  was  competent  for 
plaintiffs  and  defendant,  by  agreement,  to  have  united 
therewith  an  ordinary  action  at  law,  prosecuted  by  or- 

22  Code,    Sec.    3462;     Shields    v.         24  Code,   Sec.  3099. 

Keys,  24-298;  Millard  v.  West,  50-          25  Jones,  etc.,  v.  Boggs,  63-589. 
616.  26  Code,  Sec.   3429;    Sweetzer   v. 

23  Keller  v.  Tracey,  11-530.  Harwick,  67-488. 


358  MECHANICS'  LIENS  AND  CLAIMS.  [§  1135. 

dinary  proceedings.27  But  where  there  is  a  misjoinder 
of  causes  of  action  the  defect  will  be  waived  unless  taken 
advantage  of  by  motion  at  the  proper  time.28  So,  where 
an  action  at  law  was  begun  against  one  of  the  defend- 
ants on  a  promissory  note,  and  plaintiffs  afterward 
amended,  bringing  in  other  parties  and  seeking  to  fore- 
close and  establish  a  mechanic's  lien,  the  amendment 
was  properly  stricken  from  the  files,  the  plaintiff  refus- 
ing to  elect  on  which  cause  of  action  he  would  stand.29 
The  appearance  term  is  the  trial  term  in  actions  to  en- 
force mechanic's  .liens.30  In  an  action  to  foreclose  a  me- 
chanic's lien,  when  there  is  a  general  denial  of  the  peti- 
tion, plaintiff  must  prove  that  the  buildings  on  which 
the  improvements  were  made  were  situated  on  the  land 
described  in  the  statement  and  affidavit  filed  in  the 
clerk's  office,  and  that  the  defendant  was  the  owner  of 
the  land,  and  such  facts  are  not  proved  by  the  introduc- 
tion in  evidence  of  such  statement  and  affidavit.31 

As  to  what  interest  must  be  shown  in  real  estate  in 
order  to  enforce  a  lien  against  it32  The  fact  that  the 
contract  for  the  lien  is  in  writing  will  not  exclude  evi- 
dence to  show  the  purpose  for  which  the  materials  men- 
tioned in  the  contract  were  to  be  used.33  The  statement 
filed  with  the  clerk  is  the  limit  of  plaintiff's  recovery 
only  with  respect  to  purchasers  and  incumbrancers.34 
Under  a  prior  law  it  was  held  that  the  enforcement  of  a 
mechanic's  lien  was  an  action  at  law  and  no  equity  of  re- 
demption existed.35  This  is  changed  by  the  existing 
statute  making  it  a  proceeding  in  equity,  and  the  right 
of  redemption  exists  from  sales  made  under  judgments 
enforcing  mechanic's  liens  as  in  other  cases.36 

27  Hines  v.  W.  Coal  &  M.  Co.,  48-         32  Dierks  v.  Walrod,  66-354-  Lane 

v.  Snow,  66-544. 

28  Code,  Sec.  3548;  Flynn  v.  Des         ss  Neilson  v.  Iowa  E.  R.  Co     51- 
Moines  &    St.    L.    R.    Co.,    63-503;      184;  and  cases  cited. 

Hines  v.  Homer,  86-594.  34  Same  as  No.  33. 

29  Sweetzer  v.  Harwick,  67-488.  35  state  v.  Eads,  15-114,  and  cases 
so  Code,  Sec.  3656.                                cited. 

si  Hutton  v.  Maines,  68-650;  see         as  Code,  Sec.  3429;  Jones  v.  Har- 
Pease  v.  Thompson,  67-70.  sock,  42-147;   see  Phelps  v    Pope 

53-691. 


§  1136.]  MECHANICS'  LIENS  AND  CLAIMS.  859 

But  a  mechanic's  lien  before  judgment  thereon  is  not 
of  such  a  character  as  to  entitle  the  holder  to  redeem.37 

If  the  defendant,  having  been  served  with  an  original 
notice  in  an  action  to  enforce  a  mechanic's  lien,  fails  to 
appear  and  plead  within  the  time  provided  by  statute, 
judgment  may  be  taken  by  default  against  him.  Where 
a  statement  for  a  lien  was  filed  against  a  society,  and 
the  sheriff  was  a  member  of  its  building  committee,  the 
delivery  to  him  for  service  of  a  notice  of  the  claim,  and 
the  filing  thereof,  addressed  to  the  society,  is  not  service 
on  the  society,  it  not  appearing  what  the  duties  of  the 
building  committee  were  or  that  it  was  then  in  exist- 
ence.38 On  the  foreclosure  of  a  lien  the  claim  can  not  be 
amended  to  include  land  omitted,  as  against  a  purchaser 
in  good  faith  without  notice,  and  after  the  time  for  filing 
liens  has  expired  and  before  any  claims  for  liens  are 
filed.39  Under  section  3089,  of  the  code,  a  right  to  a  lien 
on  improvements  may  exist  without  any  contract  with 
the  owner  of  the  fee,  but  by  contract  with  the  owner  of 
improvements.40 

When  a  sub-contractor  undertakes  to  enforce  a  me- 
chanic's lien  he  should  show  in  his  petition  such  indebt- 
edness from  the  owner  to  the  contractor  as  will  justify 
the  court  in  decreeing  a  lien.41  A  lien  will  not  be  de- 
creed when  the  pleadings  fail  to  show  that  the  material 
was  furnished  or  work  done,  upon  an  improvement,  or 
that  anything  is  due.42 

§  1136.  Of  satisfaction  of  the  lien. — Whenever  a 
lien  has  been  claimed  by  filing  the  same  in  the  clerk's 
office  and  it  is  afterward  paid,  the  creditor  must  ac- 
knowledge satisfaction  thereof  upon  the  proper  book  in 
such  office,  or  otherwise,  in  writing,  and  if  he  neglects  to 
do  so  for  thirty  days  after  demand  in  writing  he  will  for- 
feit twenty-five  dollars  to  the  owner  or  contractor  and 

ST  Code,   Sec.  4046.  Gillivray  v.  Dist.  Twp.,  65  N.  W 

as  Steele  v.  McBurney,  65  N.  W.,  974. 
332.  40  Lane  v.  Snow,  66-544. 

SB  Chicago  Lumber  Co.  v.  D.  M.          «  Martin  v.  Morgan,  64-270. 
D.  P.,  65  N.  W.,  1017;  and  see  Me-          «  Roberts  v.  Campbell,  59-675. 


360  MECHANICS'  LIENS  AND  CLAIMS.  [§  1137. 

be  liable  to  any  person  injured  to  the  extent  of  his  in- 
jury.43 If  satisfied  on  the  record,  it  will  be  sufficient  to 
state  in  substance  that  the  amount  of  the  lien  has  been 
paid  and  satisfied;  if  the  satisfaction  is  evidenced  by  a 
separate  writing  it  may  be  in  the  following  form: 

FORM  OF  ACKNOWLEDGMENT  OF  SATISFACTION  OF  MECHAN- 
IC'S LIEN. 

In  consideration  of  the  sum  of dollars,  in  hand  paid  by , 

of county,  Iowa,  I  hereby  release  and  acknowledge  satisfaction  in 

full  of  a  certain  mechanic's  lien  for  the  sum  of dollars,  claimed 

and  filed  by  me  in  the  office  of  the  clerk  of  the  district  court  within  and 
for county,  Iowa,  on  the day  of ,  18 — ,  on  the  follow- 
ing described  property  to  wit:  (here  describe  the  property.) 

Witness  my  hand  this day  of ,  18 — . 


If  satisfaction  be  thus  made  it  must  be  filed  with  the 
clerk  of  the  district  court,  who  must  enter  satisfaction  of 
the  lien  upon  the  record,  or  on  the  margin  thereof,  in  .the 
same  manner  as  the  satisfaction  of  a  mortgage  is  en- 
tered. 

§  1137.  Of  the  petition. — The  petition  for  a  mechan- 
ic's lien  may  be  in  the  following  form: 

FORM  OF  PETITION  FOR  MECHANIC'S  LIEN. 

Title,    ) 
Venue,  f 

Par.  1.  Plaintiff  states:  That  on  the day  of ,  18—,  he 

made  a  parol  (or  written)  contract  with  the  defendant  to  furnish  him 
(here  state  what,  as  lumber,  etc.),  for  a  certain  two-story  dwelling  house 
(or  barn,  or  store  building,  etc.),  situated  on  the  following  described 
real  estate  (here  describe  the  entire  tract  of  land). 

Par.  2.  That  defendant,  at  the  time  said  contract  was  made,  was, 
and  ever  since  has  been,  the  owner  in  fee  simple  of  said  land,  and  the 
buildings  situated  thereon  (if  his  interest  is  less  than  a  fee  simple,  state 
what  it  is). 

Par.  3.  That  under  and  by  virtue  of  the  contract  heretofore  re- 
ferred to  plaintiff  furnished  the  lumber  (or  other  materials,  as  the  case 
may  be),  as  set  out  in  exhibit  "A,"  attached  hereto  and  made  a  part 
hereof. 

Par.  4.    That  said  lumber  was  furnished  for  the  building  aforesaid 

«  Code,  Sec.  3101. 


§  1138.]  MECHANICS'  LIENS  AND  CLAIMS.  361 

at  the  respective  dates,  and  at  and  for  the  respective  prices,  as  is  shown 
in  said  exhibit  "A." 

Par.  5.    That  on  the day  of  -     — ,  18—,  plaintiff  filed  in  the 

office  of  the  clerk  of  the  district  court  of county,  Iowa,  a  just  and 

true  account  of  his  demand  due  and  owing  him  from  defendant  for  said 
lumber  (or  materials,  etc.),  furnished  as  aforesaid,  verified  by  affidavit 
and  claiming  a  mechanic's  lien  therefor;  copies  of  said  account  and 
affidavit  are  attached  hereto,  marked  exhibits  "A"  and  "B"  respectively, 
and  made  a  part  hereof. 

Par.  6.    That  the  defendants ,  have,  or  claim  to  have,  some 

lien  or  interest  in  or  to  the  real  estate  heretofore  described,  but  plaintiff 
avers  that  such  lien  or  interest,  if  any,  is  junior  and  inferior  to  plain- 
tiff's said  lien. 

Par.  7.     That  there  is  due  plaintiff  on  said  account  the  sum  of  — 

dollars  with  interest  thereon  from  the day  of ,  18 — ,  for 

which  he  demands  judgment  against  said  defendant ,  with  interest 

and  costs,  and  prays  that  his  mechanic's  lien  be  established  and  en- 
forced against  the  building  and  land  aforesaid  as  provided  by  law;  that 
the  lien  of  each  and  all  of  the  defendants  in  this  action  to  the  real  es- 
tate above  described  be  decreed  to  be  junior  and  inferior  to  plaintiff's 
lien  thereon,  and  that  the  equity  of  redemption  of  each  and  all  of  said 
defendants  be  forever  barred  and  foreclosed,  and  that  special  execution 
issue  for  the  sale  of  said  premises,  or  so  much  thereof  as  may  be  neces- 
sary to  satisfy  said  judgment,  interest  and  costs,  and  for  such  other  re- 
lief as  may  be  equitable  in  the  premises. 


(Add  verification  and  exhibits  "A"  and  "B.") 

As  the  relief  which  should  be  prayed  for  will  depend 
on  the  circumstances,  the  above  form  of  prayer  will  have 
to  be  varied  to  suit  the  facts  in  each  case.  If  a  note  has 
been  taken  for  the  amount  of  the  account  the  following 
should  be  inserted  in  lieu  of  the  first  part  of  paragraph 
seven  above:  "That  on  the  —  -  day  of  -  — ,  18 — ,  the 
defendant,  -  — ,  executed  to  plaintiff  his  certain  promis- 
sory note  in  words  and  figures  following,  for  the  amount 
then  due  on  said  account  (here  set  out  the  copy  of  note). 
That  no  part  of  said  account  or  note  has  been  paid,  that 
it  is  plaintiff's  property,  and  there  is  due  plaintiff  on  said 
note  the  sum  of  -  -  dollars,  with  -  -  per  cent,  interest 
thereon  from  -  -  day  of  -  — ,  18 — ,  for  which  he  pays 
judgment  against  said  defendant  and  for  costs."  Then 
follow  with  prayer  for  lien,  etc.,  as  above. 

§  1138.  Of  judgment. — It  is  said  that  when  a  me- 
chanic's lien  is  confirmed  by  judgment,  it  is  binding  upon 


362  MECHANICS'  LIENS  AND  CLAIMS.  [§  1139. 

the  parties  and  all  persons  who  are  represented  by  them 
and  claim  under  them,  or  are  privy  to  them,  and  they  are 
estopped  from  litigating  that  which  is  conclusive  upon 
those  with  whom  they  thus  stand  related.44  A  judgment 
enforcing  a  mechanic's  lien  may  be  corrected  by  subse- 
quent proceedings  to  show  that  the  lien  attached  at  an 
earlier  date,  and  it  is  held  that  the  plaintiff  is  not 
estopped  by  the  first  entry  from  asserting  his  precedence 
over  other  lien-holders  whose  liens  attached  before 
that  entry  was  made.45  Whether  this  could  be  done 
against  parties  whose  liens  attached  after  the  entry, 
qu^re.  When  the  defendant  in  a  mechanic's  lien  fore- 
closure is  the  owner  of  both  land  and  building,  and  there 
is  no  prior  lien  on  the  land,  it  is  error  to  order  a  sale  of 
the  building  alone,  as  its  removal  from  the  land  would 
defeat  the  owner's  right  of  redemption.46  Under  a  prior 
statute  providing  for  a  sale  and  removal  of  improve- 
ments in  certain  cases,  it  was  held  that  if  the  nature  of 
the  improvement  was  such  that  it  could  not  be  removed, 
the  lien  would  be  postponed  to  the  prior  incumbrance  on 
the  land.47  And  it  was  also  held  erroneous  to  decree  a 
sale  of  land  and  buildings  together  and  the  payment  of 
a  part  of  the  proceeds  to  the  mechanic's  lien  holder  in 
case  of  liens  on  buildings  erected  after  the  giving  of  a 
mortgage.48 

Where  a  mechanic's  lien  which  misdescribed  what 
was  intended  to  be  covered  thereby  had  been  foreclosed, 
the  lien  did  not  thereby  become  merged  in  the  judgment, 
so  that  another  lien,  correctly  describing  the  property, 
might  not  be  filed.49 

§  1139.  Of  limitation  of  actions. — Actions  to  en- 
force mechanic's  liens  must  be  brought  within  two  years 
from  the  expiration  of  the  thirty  or  ninety  days,  as  the 
case  may  be,  for  filing  the  claims.50  And  the  failure  of  a 

44  State  v.  Eads,  15-114.  son   v.   Reuter,   29-176;    see   First 

45  Monroe  v.  West,  12-119.  Nat.  Bk.  v.  Elmore,  52-541. 
4«  Early  v.  Burt,  67-716.  49  Gray  v.  Dunham,  50-170. 
47  Conrad  v.  Starr,  50-470.  eo  Code,  Sec.  3447;  Sub.  4. 
48Brodt  v.  Bohkar,  48-36;  Wil- 


§§  1140,  1141.]    MECHANICS'  LIENS  AND  CLAIMS.  363 

mechanic  to  file  his  statement  and  claim  for  a  lien  under 
the  statute  will  not  extend  the  time  within  which  the 
action  to  enforce  the  lien  must  be  commenced.51  But  a 
failure  to  enforce  a  lien  until  it  is  barred  by  the  statute 
of  limitations  will  not  prevent  the  lien-holder  from  re- 
covering on  his  debt  against  a  person  bound  therefor.52 

§  1140.  Sub-contractors,  who  are. — All  persons 
furnishing  materials  or  doing  work  for  which  a  lien  is 
allowed  are  considered  sub-contractors,  except  such  as 
have  contracts  directly  with  the  owner,  proprietor,  his 
agent  or  trustee.53 

§  1141.  Of  the  sub-contractor's  lien,  how  pre- 
served and  how  discharged. — To  preserve  his  lien  as 
against  the  owner,  and  to  prevent  payments  by  the  lat- 
ter to  the  principal  contractor,  or  to  intermediate  sub- 
contractors, but  for  no  other  purpose,  the  sub-contractor 
must,  after  commencing  such  labor  or  furnishing  such 
material,  and  within  thirty  days  after  the  completion 
thereof,  serve  on  such  owner,  his  agent  or  trustee,  a  writ- 
ten notice  of  the  filing  of  said  claim,  which  notice  may  be 
served  by  any  sheriff  or  constable,  or  other  person,  and 
if  the  party  to  be  served,  his  agent  or  trustee,  is  out  of 
the  county  wherein  the  property  is  situated,  a  return  of 
that  fact  by  the  person  charged  with  making  such 
service,  will  constitute  sufficient  service  from  and  after 
the  time  it  is  filed  with  the  clerk.  But  the  lien  of  such 
sub-contractor  may  at  any  time  be  discharged  by  the 
owner,  contractor  or  intermediate  sub-contractor  filing 
with  the  clerk  of  the  district  court  a  bond  in  twice  the 
amount  of  the  sum  for  which  the  claim  for  the  lien  is 
filed,  with  two  or  more  sureties,  to  be  approved  by  the 
clerk,  conditioned  for  the  payment  of  any  sums  for  which 
the  mechanic  may  obtain  judgment  upon  the  demand  of 
which  such  statement  or  account  has  been  filed.  But  if 
no  claim  for  a  lien  is  filed  within  the  period  heretofore 

si  Gilchrist  v.  Gottschalk,  39-311;          02  Black  v.  Howell,  56-630. 
Squier  v.  Parks,  56-407;  Dimmick          BS  Code,  Sec.  3097. 
v.  Hinckley,  57-757. 


364  MECHANICS'  LIENS  AND  CLAIMS.  [§  1141. 

mentioned,  and  the  notice  thereof  is  not  served,  or  if 
such  things  being  done,  the  bond  above  provided  is  filed, 
then  the  owner  or  contractor  may  thereafter  proceed  to 
make  payments  and  adjust  their  claims  without  regard 
to  the  lien  of  the  sub-contractor,  and  the  owner  is  not 
required  to  pay  a  greater  amount,  or  in  any  other  man- 
ner, or  at  any  other  time,  than  is  provided  in  his  con- 
tract.54 The  notice  above  mentioned  may  be  in  the  fol- 
lowing form: 

NOTICE  OF  FILING  CLAIM  BY  SUB-CONTRACTOR. 

To : 

You  are  hereby  notified  that  I  did,  on  the day  of ,  18 — , 

file  with  the  clerk  of  the  district  court  of  county,  Iowa,  a  true 

statement  or  account  of  the  amount  due  me  after  allowing  all  credits 
for  materials  furnished  (or  labor  performed  for  the  erection  of  a  certain 
dwelling  house,  or  other  building  or  improvement,  as  the  case  may  be) 
on  the  following  described  real  estate  (here  describe  it) ;  and  claiming 
a  mechanic's  lien  on  said  building  and  lands  for dollars,  the  bal- 
ance due  me  thereon. 

Dated  this day  of ,  18—. 

The  bond  above  provided  for  may  be  in  the  following 
form: 

FORM  OF  BOND  TO  DISCHARGE  LIEN  OF  SUB-CONTRACTOR. 

Know  all  men  by  these  presents,  that  we  ,  principal,   and 

and ,  sureties,  all  of county,  Iowa,  parties  of  the  first 


part,  are  held  and  firmly  bound  to ,  of county,  Iowa,  party 

of  the  second  part,  and  sub-contractor,  in  the  penal  sum  of  (here  insert 
amount,  which  must  be  twice  the  sum  claimed  by  the  sub-contractor, 
etc.,)  dollars,  lawful  money  of  the  United  States,  well  and  truly  to  be 

paid.    The  condition  of  this  obligation  is  this:     That  whereas as 

(sub-contractor,  or  as  the  case  may  be,)  did,  on  the day  of , 

18 — ,  file  in  the  office  of  the  clerk  of  the  district  court  of county, 

Iowa,  a  statement  of  his  claim  and  account  due  and  owing  him  from 

and  claiming  a  mechanic's  lien  therefor  on  the  following  real 

estate  described  therein,  viz.:  (here  describe  the  land  as  in  the  claim 
filed.)  The  condition  of  this  obligation  is  this:  That,  if  the  said  par- 
ties of  the  first  part  shall  and  will  pay  to  said  second  party,  his  heirs, 
assigns  or  administrators,  any  sum  of  money  for  which  said  second 
party  may  obtain  judgment  upon  the  demand  of  which  said  statement 

54  Code,  Sec.  3093. 


§  1141.]  MECHANICS'  LIEXS  AND  CLAIMS.  365 

or  account  has  been  filed,  then  this  obligation  to  be  void,  otherwise  it  is 
to  be  and  remain  in  full  force  and  virtue. 

Witness  our  hands  this day  of ,  18 — . 

,  principal. 

'  j.  sureties. 
(Add  justification.) 

A  written  notice  of  the  filing  of  the  claim  is  required, 
as  the  statute  recognizes  no  other  as  sufficient.55 

The  lien  of  the  sub-contractor  attaches  only  to  the  ex- 
tent of  the  balance  due  the  contractor  at  the  time  the 
notice  was  given.56  A  sub-contractor  who  holds  an  open 
and  unsettled  account  against  his  principal  contractor, 
can  not  bring  an  action  against  the  owner  and  establish 
a  lien  against  his  property  without  adjudicating,  or  at- 
tempting in  any  way  to  adjudicate,  his  claim  against  his 
contractor,  and  if  he  stands  by  and  sees  the  owner  pay 
the  contractor  in  full,  he  is  estopped  from  afterward  as- 
serting his  claim.57  If  a  contractor  has  received  pay- 
ment in  full  before  making  an  agreement  with  a  sub- 
contractor for  materials,  the  sub-contractor  can  have  no 
lien  against  the  owner.58  And  if  the  owner  has,  without 
knowledge  of  the  claims  of  sub-contractors,  paid  the  con- 
tractor in  full,  he  will  not  be  liable  on  the  claims  of  sub- 
contractors.59 As  against  a  sub-contractor,  the  owner 
may  pay  the  contractor  in  accordance  with  the  provis- 
ions of  his  contract,  if  he  has  reserved  no  power  therein 
to  discharge  the  claims  of  sub-contractors,  and  this  is 
so,  regardless  of  any  knowledge  he  may  have  that  labor 
and  material  has  been  furnished  by  a  sub-contractor 
which  has  not  been  paid  for.60  Until  the  expiration  of 

BO  Lounsbury  v.  The  I.,  M.  &  N.  52-335;    Robinson  v.  State  Ins.  Co., 

P.  R.  Co.,  49-255;  Cutler  v.  McCor-  55-489;   Hug  v.  Hintrager,  80-359; 

mick,  48-406;  Jeure  v.  Perkins,  29-  Thompson  v.   Spencer,   63    N.  W., 

262;     Frost     v.     Rawson,     91-553;  695;  Wickham  v.  Munroe,  89-666; 

Walker  v.  Queal,  91-704;  Steele  v.  Hazzard  v.  Council  Bluffs,  87-51. 

McBurney,  65  N.  W.,  332;   Merritt  "  Vreelan   v.   Ellsworth,    71-347. 

v.  Hopkins,  65  N.  W.,  1015.  ss  Mallory     v.      Marion     Water 

5«  Cutler  v.   McCormick,   48-406;  Works  Co.,  77-715. 

Utter  v.  Crane,  37-631;    Stubbs  v.  09  Parker  v.  Scott,  82-266. 

Clarinda,  etc.,  62-280;  Kilbourne  v.  eo  Epeneter       v.       Montgomery 

Jennings,    38-533;    Jones,    etc.,    v.  County,  67  N.  W.,  93. 
Murphy,  64-165;  Stewart  v.  Wright, 


366  MECHANICS'  LIENS  AND  CLAIMS.  [§  1142. 

the  thirty  days  the  owner  cannot,  as  against  sub-con- 
tractors, pay  the  contractor  except  as  provided  by  the 
terms  of  the  contract.61 

When  the  contractor  for  a  building  gave  to  a  party 
furnishing  materials  an  order  upon  the  owner,  which 
was  accepted  by  him  conditional  upon  the  performance 
of  the  contract,  it  was  held  that  whatever  the  contractor 
became  entitled  to«  thereafter  must  be  applied  in  pay- 
ment of  the  order.62  Sub-contractors  on  railroads,  as 
well  as  other  sub-contractors,  must  give  notice  of  their 
claims  within  thirty  days  from  the  completion  of  their 
work,  if  they  expect  to  preserve  their  lien.63  A  sub-con- 
tractor of  a  sub-contractor  may  have  a  lien.64 

§  1142.  Of  payments  made  by  the  owner  to  the  con- 
tractor within  the  thirty  days,  etc. — When  the  prin- 
cipal contractor  recognizes  the  fact  that  there  are  to  be 
sub-contractors  whom  the  owner  may  be  required  to 
pay,  and  he  knows  that  certain  persons,  as  sub-contrac- 
tors, have  furnished  material,  he  will  be  liable  to  them 
if  their  claims  are  filed  and  notice  served  within  the 
thirty  days.65  But  it  has  been  held  that  the  owner,  who 
in  good  faith  pays  the  contractor  within  thirty  days  in 
accordance  with  the  agreement  between  them,  and  with- 
out knowledge  of  the  claim  of  a  sub-contractor,  will  be 
protected.  But  if  he  have  any  knowledge  of  such  claim, 
and  pay  within  the  thirty  days,  the  sub-contractor's  lien 
will  be  preserved.66 

This  doctrine  has  been  carried  to  the  extent  of  holding 
that  if  the  owner  pay  the  contractor  during  the  thirty 
days  and  in  accordance  with  the  terms  of  the  contract, 
and  without  notice  of  any  claims  by  sub-contractors,  he 
will  not  be  protected  in  such  payment  if  he  could  prob- 
ably, by  the  exercise  of  reasonable  diligence,  have  dis- 
covered that  the  sub-contractor  was  entitled  to  a  lien; 

61  Merritt  v.  Hopkins,  65  N.  W.,         «*  Mears  v.  Stubbs,  45-675. 
1015.  65  Winter  v.  Hudson,  54-336. 

62  Cutler  v.  McCormick,  48-406.  66  Andrews   v.    Burdick,    62-714; 
68  Sandval  v.  Ford,  55-461;  Nash      Fullerton  v.  Osborn,  72-472. 

v.  C.,  M.  &  St.  P.  R.  Co.,  62-49. 


§  1142.]  MECHANICS'  LIENS  AND  CLAIMS.  367 

and  in  the  same  case  it  was  held,  that  if  the  owner  knew 
the  contractor  had  to  purchase  his  material,  and  if  by 
inquiry  he  might  have  ascertained  from  whom  it  was 
bought,  and  he  did  not  do  so,  and  it  was  not  paid  for,  he 
is  not  protected.67  If  the  owner  has  knowledge  of  facts 
sufficient  to  put  him  upon  inquiry,  he  should  withhold 
payment  during  the  thirty  days.68  But  it  seems  that  an 
owner  who  has  not  in  his  contract  with  his  contractor, 
reserved  the  right  to  control  funds  in  the  interest  of  sub- 
contractors— may  pay  his  contractors  in  strict  accord- 
ance with  the  terms  of  the  contract,  regardless  of  his 
knowledge  as  to  any  claim  of  any  sub-contractor.69  If, 
by  the  terms  of  the  contract,  the  principal  contractor  is 
entitled  to  compensation  in  full  before  the  work  is  com- 
pleted, and  is  paid  before  that  time,  and  without  any 
notice  of  claims  for  liens,  no  liens  can  be  enforced 
against  the  owner  or  the  property.70  Where  the  owner, 
within  the  thirty  days,  paid  certain  sub-contractors  who 
had  not  filed  claims,  the  balance  due  under  the  contract, 
which  was  more  than  enough  to  pay  plaintiff's  claim, 
with  knowledge  that  plaintiffs  were  also  sub-contrac- 
tors, and  plaintiffs  filed  their  claims  as  provided  by  law, 
it  was  held  that  such  owner  was  not  justified  in  mak- 
ing such  payments,  but  should  have  retained  the  same 
to  pay  liens  in  the  order  of  their  priority.71 

And  it  was  also  held  that  a  statement  filed,  which 
showed  the  date  the  contract  was  made  and  the  date  the 
last  work  was  done,  was  sufficient  as  against  the  owner 
of  the  property.  Sub-contractors  must  take  notice  of 
the  terms  of  the  principal's  contract,  and,  the  owner  is 
protected  in  making  payments  to  the  principal  contrac- 
tor, in  accordance  with  the  terms  of  such  contract,  un- 
less notified  of  the  claims  of  sub-contractors  before  such 

67  Gilchrist  v.  Anderson,  59-274;          e»  Epeneter       v.       Montgomery 

Fay  v.   Orison,   60-136;    Martin  v.  County,  67  N.  W.,  93. 
Morgan,  64-270.  TO  Roland  v.  C.,  M.  &  A.  R.  Co., 

«s  Jones,  etc.,  v.  Murphy,  64-165;  61-380. 

Chicago  Lumber  Co.  v.  Woodside,         TI  Othmer  v.  Clifton,  69-656. 
71-359. 


368  MECHANICS'  LIENS  AND  CLAIMS.  [§  1143. 

payments  are  made.72  Where  a  building  contract  pro- 
vided that  sub-contractors  should  be  paid  by  orders 
given  by  the  principal  contractor,  and  the  owner  had 
knowledge  of  the  furnishing  materials  by  certain  sub- 
contractors, he  was  liable  therefor,  although  he  had 
made  full  payment  to  the  principal  contractor  before  no- 
tice of  claim  for  lien  had  been  filed  and  served,  it  having 
been  filed  and  served  within  the  thirty  days.73  Where 
the  contractor  gave  bond  for  the  execution  of  his  con- 
tract, and  the  owner  paid  him  in  full  before  the  expira- 
tion of  the  time  allowed  for  filing  liens  by  sub-contrac- 
tors, and  he  was  afterward  compelled  to  pay  additional 
sums  to  satisfy  such  liens,  he  was  not  permitted  to  re- 
cover such  additional  sums  from  the  sureties  on  the  con- 
tractor's bond,  he  being  negligent  in  paying  the  con- 
tractor prior  to  the  expiration  of  the  time  for  filing  liens 
by  sub-contractors.74 

§  1143.  Extent  of  lien  of  sub-contractor  when 
claim  filed  after  thirty  days. — A  sub-contractor  may, 
at  any  time  after  the  expiration  of  the  thirty  days,  file 
his  claim  for  a  mechanic's  lien  with  the  clerk  of  the  dis- 
trict court,  in  the  manner  before  stated,  and  give  written 
notice  thereof  to  the  owner,  his  agent  or  trustee,  and 
from  and  after  the  service  of  such  notice  his  lien  will 
have  the  same  force  and  effect,  and  may  be  prosecuted 
or  vacated  by  bond,  as  if  filed  within  the  thirty  days,  but 
will  be  enforced  against  the  property  or  upon  the  bond, 
if  given  by  the  owner,  only  to  the  extent  of  the  balance 
due  from  the  owner  to  the  contractor  at  the  time  of  the 
service  of  such  notice  upon  the  owner,  his  agent  or  trus- 
tee. 

But  if,  in  such  case,  the  bond  is  given  by  the  contrac- 
tor, or  person  contracting  with  the  sub-contractor,  who 
files  the  claim  for  a  lien,  such  bond  will  be  enforced  to 

72  Stewart    v.     Wright,     52-335;  73  Winter  v.  Hudson,  54-336. 

Blanding  v.  Davenport,  I.  &  D.  R.  74  Lucas  County  v.  Roberts,  49- 

Co.,  88-225;  Epeneter  v.  Montgom-  159. 
ery  Co.,  67  N.  W.,  93. 


§  1143.]  MECHANICS'  LIENS  AND  CLAIMS.  369 

the  full  extent  of  the  amount  found  due  the  sub-con- 
tractor.75 

Where,  by  agreement  between  the  owner  and  con- 
tractor, a  claim  which  the  former  held  against  the  latter 
was  to  be  allowed  as  a  payment  on  the  last  installment 
to  be  paid  under  the  contract,  and  the  sub-contractor's 
claim  for  a  lien  was  filed  more  than  thirty  days  after  the 
last  item  in  his  account,  it  was  held  he  could  only  Re- 
cover what  remained  due  from  the  owner  to  the  con- 
tractor after  deducting  said  claim.76 

76  Code,  Sec.  3094.  *•  Ewing  v.  Folsom,  67-65. 


Vol.  n-24 


CHAPTER  LXX. 

OF  REAL  ESTATE  MORTGAGES. 

Sec.  1144.    How  and  where  foreclosed. 

1145.  Of  parties. 

1146.  Of  election,  when  separate  actions  are  brought  upon  note 

and  mortgage. 

1147.  Of  the  petition. 

1148.  Of  the  judgment 

1149.  Of  attorney's  fees. 

1150.  Of  the  execution. 

1151.  Of  assignment  to  junior  incumbrancers. 

1152.  Of  the  surplus  arising  from  the  sale. 

1153.  Of  other  liens. 

1154.  Of  the  sale,  and  of  satisfaction  of  the  mortgage. 

1155.  Oi  the  duty  of  the  clerk. 

1156.  Of  foreclosure  of  title  bonds. 

1157.  Of  the  cancellation  of  real  estate  contracts. 

1158.  Of  pleadings,  practice,  etc. 

1159.  Of  redemption. 

1160.  Of  priority  of  liens,  intervening  equities,  indexing,  etc. 

1161.  Of  release  and  merger. 

Section  1144.  How  and  where  foreclosed, — An  ac- 
tion on  a  note,  together  with  the  mortgage  or  deed  of 
trust  for  the  foreclosure  of  the  same,  must  be  by  equi- 
table proceedings  in  the  district  court,  and  in  the  county 
in  which  the  property  to  be  affected,  or  some  part  there- 
of, is  situated.1  Under  the  law  providing  for  the  fore- 
closure of  mortgages  and  deeds  of  trust,  by  ordinary  pro- 
ceedings, it  was  held  that  in  equity  the  conveyance  of 
land  to  a  trustee  for  the  payment  of  a  debt  with  power 
to  sell  in  case  of  default,  should  be  treated  as  a  mort- 

iCode,    Sees.    3428,    3493,    4284,      181;  Iowa  L.  &  T.  Co.  v.  Day,  63- 
4287;    Kramer  v.   Rebman,    9-114;       459;    Equitable    Life    Ins.    Co.    v. 
Scott  v.  Simeral,  9-388;   Lomax  v.      Gleason,  56-47;  Cole  v.  Connor,  10- 
Smith,  50-223;   McDowell  v.  Loyd,      299;   Code,  Sec.  3496. 
22-448;  Chadbourne  v.  Oilman,  29- 

370 


§1145.]  KEAL   ESTATE   MOBTGAGES.  311 

gage.2  And  generally  it  is  held  that  a  deed  absolute  in 
form  will  be  treated  as  a  mortgage,  when  it  is  shown 
that  it  was  executed  for  the  purpose  of  securing  the  pay- 
ment of  a  debt  existing  at  the  time  of  its  execution.3  If 
it  is  doubtful  whether  the  instrument  is  a  mortgage  or  a 
conditional  sale,  a  court  of  equity  will  treat  it  as  a  mort- 
gage.4 And  equity  will  regard  any  conveyance  of  land 
intended  to  operate  as  security  for  a  debt,  or  the  per- 
formance of  a  contract,  as  a  mortgage.5 

§  1145.  Of  parties. — The  owner  of  the  mortgage  or 
deed  of  trust  sought  to  be  foreclosed  must  be  made  plain- 
tiff, but  when  a  mortgage  is  given  to  secure  the  payment 
of  several  promissory  notes  falling  due  at  different  times, 
which  notes  afterwards  become  the  property  of  different 
persons,  the  several  holders  of  such  notes  can  not  unite 
as  plaintiffs  in  a  suit  to  foreclose  the  mortgage;  for  the 
purposes  of  suit  they  stand  as  independent  mortgagees.6 
It  is  not  necessary  to  make  prior  mortgagees  parties 
defendant,  as,  their  interest  being  paramount,  they  could 
not  be  affected  by  the  decree.7  Nor  need  subsequent 
mortgagees  be  made  parties  defendant.8  But  they  and 
the  purchaser  of  the  mortgaged  premises  are  proper 
parties  defendant.9  And  they  should  always  be  made 

s  Newman  v.  Samuels,  17-528.  5  Green  v.  Turner,  38-112;  Clin- 
s  Hall  v.  Savill,  3  G.  Gr.,  37;  ton  Nat'l  Bk.  v.  Manwarring,  39- 
Boomer  v.  Stone,  38-685;  Usher  v.  281;  N.  Y.  Piano  Co.  v.  Mueller,  42- 
Livermore,  2-117;  Vennum  v.  Bab-  467;  White  v.  Lucas,  46-319;  Bar- 
cock,  13-194;  Key  v.  McCleary,  25-  nett  v.  Nelson,  46-495;  Hensley  v. 
191;  Gardner  v.  Weston,  18-533;  Whiffin,  58-426;  Richardson  v.  Bar- 
Holliday  v.  Arthur,  25-19;  Maple  v.  rick,  16-407;  Holliday  v.  Arthur, 
Nelson,  31-322;  Rosierz  v.  Van  25-19;  Crawford  v.  Taylor,  42-260; 
Dam,  16-175;  Chase  v.  Abbott,  20-  Brush  v.  Peterson,  54-243;  Radford 
154;  Clinton  Nat'l  Bk.  v.  Man  war-  v.  Folsom,  58-473;  see  Huston  v. 
ring,  39-281;  Montgomery  v.  Chad-  Seeley,  27-83. 

wick,  7-114;  Trucks  v.  Lindsey,  18-  e  Ranken    v.    Major,    9-297;    see 

504;  Green  v.  Turner,  38-112;  Allen  Kemerer  v.  Bournes,  53-172. 

v.  Kemp,  29-452;  N.  Y.  Piano  Co.  i  Heimstreet  v.  Winnie,  10-430; 

v.  Mueller,  38-552;  Allen  v.  Fogg,  Standish  v.  Dow,  21-363. 

66-229.  s  street  v.  Beal,  16-68;  Donnelly 

*  Trucks     v.     Lindsey,     18-504;  v.  Rusch,  15-99. 

Scott  v.  Merwhirter,  49-487;   Bar-  »  Semple  v.  Lee,  13-304;  Porter  v. 

thell  v.  Syverson,  54-160;    Hughes  Kilgore,  32-379;  Dyer  v.  Harris,  22- 

v.   Sheaff,  19-335;    Wilson   v.   Pat-  268;    Douglass   v.   Bishop,    27-214; 

rick,  34-362;  Bridges  v.  Linder,  60-  but  see   Sutherland  v.   Tyner,  72- 

190.  232. 


312  UEAL    ESTATE    ilORTGAGEs.  | 

parties,  as  otherwise  they  will  not  be  affected  by  the 
decree,  nor  will  their  interest  in  the  premises  be  divest- 
ed.10 In  an  action  to  foreclose  a  mortgage  all  persons 
should  be  made  defendants  who  have  any  interest  in,  or 
lien  upon  the  mortgaged  premises,  which  is,  or  is 
claimed  to  be,  junior  and  inferior  to  the  lien  of  the  plain- 
tiff's mortgage.11  If  a  junior  incumbrancer  is  not  made 
a  party  defendant,  the  court,  on  his  application  show- 
ing that  he  has  an  interest  in  the  equity  of  redemp- 
tion, will  permit  him  to  come  in  as  a  party.12  When  a 
married  woman  joins  with  her  husband  in  executing  a 
mortgage,  she  must  be  made  a  defendant  to  bar  her  right 
of  dower,  and  so  she  should  be  made  a  party  defendant 
in  an  action  to  foreclose  a  mortgage  on  the  homestead.13 
But  it  is  not  necessary  to  make  parties,  those  who  would 
not  be  affected  by  the  judgment  or  decree,  nor  should 
those  acting  only  as  agents  be  made  parties  unless  they 
are  charged  with  fraud.14  A  mortgagor  who  has  con- 
veyed his  interest  in  the  mortgaged  premises  is  not  a 
necessary  party  in  a  suit  to  foreclose.15  But  if  he  has 
conveyed  with  a  covenant  against  incumbrances,  he  may 
become  a  defendant  on  his  own  application.16 

When  money  of  one  is  loaned  by  another  in  his  own 
name,  the  mortgagor  and  the  administrator  of  the  party 
furnishing  the  money  may  be  joined  in  a  petition  seeking 
discovery  from  the  administrator  and  the  foreclosure  of 
the  mortgage.17  And  an  administrator  of  the  mortgagor 
is  a  proper  party  defendant  in  an  action  to  foreclose,  but 

loHeimstreet  v.  Winnie,   10-430;  Donnelly  v.  Rusch,  15-99;  Johnson 

Donnelly  v.  Rusch,  15-99;  Davis  v.  v.  Harmon,  19-56. 

Rogers,  28-413;   Porter  v.  Kilgore,  «  Chase  v.  Abbott,  20-154;  Bur- 

32-379;  Douglass  v.  Bishop,  27-214;  nap  v.  Cook,  16-149;  see  Carson  v. 

Chase  v.  Abbott,  20-154;  Anson  v.  Underwood,  12-52. 

Anson,  20-55;   Gower  v.  Winches-  i*  Lyon  v.  Tevis,  8-79;  Deland  v. 

ter,  33-303;   but  see  Sutherland  v.  Mershon,  7-70 

Tyner,  72-232.  is  Murray  v.   Catlett,    4   G.    Gr., 

11  Bleidorn  v.  Abel,  6-5;  Bunce  v.  108;    Johnson   v.    Monell,    13-300; 
West,  62-80;  Brobst  v.  Thompson,  Semple  v.  Lee,  13-304;   Johnson  v. 
4   G.   Gr.,   135;    Suiter  v.   Turner,  Foster,  68-140;  Watts  v.  Creighton, 
10-517;    Hogdon   v.   Heidman,   66-  85-154. 

645.  is  Gifford    v.    Workman,    15-34; 

12  Parrott    v.     Hughes,     10-459;      Code,  Sec.  3462. 

"  Collier  v.  Collins,  9-126  . 


§  1146. J  SEAL   ESTATE    AlOETGAGES.  373 

judgment  should  not  be  rendered  against  him  per- 
sonally.18 In  an  action  brought  by  the  beneficiary  in  a 
deed  of  trust  or  mortgage,  to  a  trustee,  to  secure  a  debt 
due  the  plaintiff,  to  foreclose  the  same,  the  trustee  is  a 
necessary  party.19  Persons  who  should  have  joined  as 
plaintiffs  but  have  refused  to  do  so,  may  be  made  de- 
fendants, the  reasons  therefor  being  stated  in  the  pe- 
tition.20 

§  1146.  Of  election — When  separate  actions  are 
brought  on  note  and  mortgage. — If  separate  actions 
are  brought  in  the  same  county  on  the  bond  or  note, 
and  on  the  mortgage  given  to  secure  it,  plaintiff  must 
elect  which  he  will  prosecute,  and  the  other  will  be  dis- 
continued at  his  costs.21  A  mortgage  conditioned  that 
the  maker  of  the  note  described  therein  shall  pay  the 
same  when  it  becomes  due,  "with  interest  at  the  rate  of 
ten  per  cent,  per  annum  from  date,  payable  annually,  ac- 
cording to  the  tenor  and  effect  of  said  note"  may  be  fore- 
closed for  interest  due  before  maturity  of  the  note.22 
And  a  mortgagee  may  foreclose  his  mortgage  after  re- 
covering judgment  on  the  notes.23  Nor  is  he  confined  to 
the  remedy  of  foreclosure  but  may  sue  at  law  on  the 
note,  bond  or  other  obligation  secured  by  the  mortgage,24 
or  if  the  covenant  for  payment  is  contained  in  the  mort- 
gage itself,  that  may  be  made  the  basis  of  the  law  ac- 
tion.25 Under  a  prior  statute  it  was  held  that  the  mort- 
gagee might,  when  there  were  subsequent  incumbranc- 
ers,  proceed  in  equity  to  settle  the  question  of  their  liens, 
after  taking  judgment  at  law  on  the  note  against  the 
mortgagor,  and  before  proceeding  to  a  sale  of  the  prop- 
erty, and  in  such  proceeding  it  was  held  proper  to  make 
the  mortgagor  a  party.26 

is  Darlington    v.    Effey,    13-177;  v.  Oascaden,  43-103;     Newbury  v. 

Hodgdon  v.  Heidman,  66-645.  Rutter,  38-179. 

i»  Tucker  v.  Silver,  9-261.  25  Morrison   v.   Morrison,   38-73; 

20  Code,  Sec.  3463.  Hendershott  v.  Ping,  24-134;  Shear- 

21  Code,  Sec.  4288.  er  v.  Mills,    35-499;     Mathews    v. 

22  Bahr  v.  Arndt,  9-39.  Davis,  61-225;  see  Wahl  v.  Philips, 

23  Wahl  v.  Philips,  12-81.  12-81. 

24  Ban tav.  Woods,  32-469;  Brown  20  Wahl  v.  Philips,  12-81;  Morri- 

son v.  Morrison,  38-73. 


374  HEAL    ESTATE    MORTGAGES.  [§  1147. 

§  1147.     Of  the  petition. — The   petition   in   a  fore- 
closure suit  may  be  in  the  following  form: 

FORM  OF  PETITION  IN  FORECLOSURE. 

Title,  ) 
Venue.  j 

The  plaintiff  states: 

Par.  1.  That  on  or  about  the day  of ,  18—,  the  defend- 
ant (naming  him)  made  his  one  certain  promissory  note  in  writing  to 
(here  insert  name  of  party  to  whom  the  note  was  given)  in  words  and 
figures  following  to  wit:  (here  set  out  copy  of  note.) 

Par.  2.  That  to  secure  the  payment  of  said  note  the  said  defendants 
(naming  them)  made  and  delivered  to  the  said  (naming  payee)  the  cer- 
tain mortgage  deed  of  said  (name  of  grantors)  upon  the  following  de- 
scribed real  estate  to  wit:  (here  describe  real  estate  as  in  the  mortgage) 
a  copy  of  which  mortgage  is  hereto  annexed  marked  exhibit  "A"  and 
made  a  part  of  this  petition. 

Par.  3.  That  said  mortgage  was  duly  filed  for  record  in  the  office  of 

the  recorder  of  deeds  of county,  Iowa,  on  the day  of  — , 

18 — ,  at  o'clock  —  m.,  and  duly  recorded  in  book  ,  page 


Par.  4.  That  said  note  is  still  plaintiff's  property,  is  due  and  wholly 
unpaid. 

Par.  5.  That  the  defendants  (naming  defendants  who  have  or 
claim  a  lien  on  the  land)  have  or  claim  to  have  some  lien  upon,  or  in- 
terest in  said  premises,  but  the  plaintiff  alleges  that  whatever  lien  or 
interest  the  said  defendants,  or  either  of  them,  may  have  in  the  said 
premises,  the  same  is  junior  and  inferior  to  the  lien  of  plaintiff's  said 
mortgage. 

Par.  6.    That  since  the  execution  of  said  mortgage  and  on  the 

day  of  —  — ,  18 — ,  plaintiff  has  paid  taxes  on  said  premises,  duly  levied, 
amounting  to  the  sum  of dollars. 

Par.  7.    That  plaintiff  has  been  to  the  expense  or dollars  for 

an  abstract  of  title  to  said  mortgaged  premises  preparatory  to  the  fore- 
closure of  said  mortgage. 

Par.  8.  Wherefore  plaintiff  demands  judgment  against  the  said 
(here  insert  maker's  name)  for  the  amount  due  upon  said  promissory 

note,  to  wit:  The  sum  of dollars  with  per  cent,  interest 

thereon  from  its  date  (or  as  the  case  may  be)  and  for  the  sum  of 

dollars  paid  to  discharge  th~e  taxes  on  the  mortgaged  premises,  with 

per  cent,  interest  thereon  from  the  time  the  same  were  paid,  and 

for  -       -  dollars  paid  for  abstract  of  title  to  said  premises  and  for 

costs  including  an  attorney's  fee  of dollars;    and  plaintiff  prays 

that  said  judgment  may  be  decreed  to  be  a  lien  upon  said  mortgaged 

premises  from  the  date  of  said  mortgage,  to  wit:  the day  of , 

18 — ;  and  that  the  lien  of  the  said  defendants,  and  each  of  them,  upon 
the  said  mortgaged  premises,  may  be  decreed  to  be  junior  and  inferior 
to  the  plaintiff's  mortgage;  that  the  equity  of  redemption  of  the  said 


§  1147.]  KEAL    ESTATE   MORTGAGES.  375 

defendants,  and  each  of  them,  be  forever  barred  and  foreclosed,  and  that 
a  special  execution  issue  for  the  sale  of  said  mortgaged  premises,  or  so 
much  thereof  as  shall  be  necessary  to  satisfy  said  judgment  with  interest 
and  costs.* 

And  that  the  court  adjudge  and  decree  that  if  any  part  of  said  mort- 
gaged premises  be  sold  under  this  decree  and  not  redeemed  within  one 
year  from  the  date  of  sale,  that  a  writ  of  possession  issue  under  the  seal 
of  this  court  directed  to  the  sheriff  of  said  county,  commanding  him  to 
put  the  purchaser  under  this  foreclosure  in  possession  thereof. 

,  attorney  for  plaintiff. 

(Add  verification.) 

In  case  some  of  the  notes  are  not  yet  due,  judgment 
may  be  had  on  those  due  and  a  sale  ordered  to  pay  all  of 
them  by  making  such  a  rebate  on  those  not  due  as  the 
court  or  judge  may  fix;  and  this  rebate  generally  con- 
sists in  stopping  the  interest  on  the  notes  not  due  at  the 
time  judgment  is  entered.27  And  in  such  case  the  fol- 
lowing should  be  inserted  in  the  prayer  at  the  point  in- 
dicated by  the  star: 

FORM  OF  ADDITION  TO  PRAYER  WHEN  SOME  OF  THE  NOTES 
SUED  ON  ARE  NOT  DUE. 

"And  that  the  court  may  order  and  decree  that  if  it  becomes  neces- 
sary to  sell  any  part  of  said  mortgaged  premises  to  satisfy  said  judg- 
ment, that  a  sufficient  amount  thereof  be  sold  to  satisfy  not  only  said 
judgment  but  the  notes  described  in  said  mortgage  which  are  not  yet 
due." 

If  it  is  a  title  bond  which  is  to  be  foreclosed,  the  peti- 
tion may  be  in  the  following  form: 


FORM  OF  PETITION  FOR  FORECLOSURE  OF  A  TITLE  BOND. 

,\ 


Title, 
Venue 


The  plaintiff  states: 

Par.  1.    That  on  the day  of ,  18 — ,  he  was  the  owner  in     / 

fee  of  the  following  described  real  estate  (here  describe  it  as  in  the 
bond)  situated  in county,  Iowa. 

Par.  2.    That  on  the  -  day  of  ,  18—,  he  sold  said  real      -j. 

estate  to  the  defendant  (naming  him)  at  and  for  the  sum  of dol- 

27Carleton  v.  Byington,  24-172;       4293;  Nat'l  Bk.  v.  Dean,  86-656. 
Stafford  v.  Maus,  38-133;  Code,  Sec. 


3?6  BEAL   ESTATE    MORTGAGES.  [§  1148. 

lars,  and  that  said  defendant  executed  to  this  plaintiff  his  one  certain 
promissory  note  therefor,  in  words  and  figures  following,  to  wit:  (here 
set  out  the  note.) 

Par.  3.  That  at  the  time  of  the  execution  of  said  note,  this  plaintiff 
executed  and  delivered  to  the  said  defendant  his  certain  title  bond  to 
said  premises,  a  copy  of  which  is  attached  hereto  marked  exhibit  "A" 
and  made  a  part  hereof. 

Par.  4.  That  said  bond  was  duly  filed  for  record  in  the  oflice  of  the 

recorder  of  deeds  of county,  Iowa,  on  the  day  of  , 

18 — ,  and  duly  recorded  in  book ,  page . 

Par.  5.    That  said  note  is  plaintiff's  property  and  is  due  and  unpaid. 

Par.  6.  That  the  defendants  (naming  them)  have  or  claim  to  have 
some  lien  upon,  or  interest  in,  said  premises,  but  the  plaintiff  alleges 
that  whatever  lien  or  interest  the  said  defendants,  or  either  of  them, 
may  have  in  said  premises,  the  same  is  junior  and  inferior  to  the  lien 
of  plaintiff  thereon. 

Par.  7.  That  since  the  execution  of  said  bond  and  on  the day 

of ,  18 — ,  plaintiff  paid  the  taxes  on  the  said  premises  duly  levied, 

amounting  to  the  sum  of dollars. 

Par.  -  8.  (Here  insert  paragraph  regarding  abstract  fees  if  bond 
provides  therefor,  as  in  previous  petition.) 

Par.  9.  (Here  insert  paragraph  relating  to  attorney's  fee,  if  bond 
provides  therefor,  as  in  previous  petition.) 

Par.  10.  Wherefore  plaintiff  demands  judgment  against  the  said 
(here  insert  the  name  of  maker  of  the  note)  for  the  amount  due  upon 

the  said  promissory  note,  to  wit:  dollars  with per  cent. 

interest  thereon  from  the day  of ,  18 — ,  and  for  the  sum  of 

dollars  paid  to  discharge  the  taxes  on  the  premises  above  de- 
scribed, with per  cent,  interest  thereon  from  the  time  the  same 

were  paid,  and  for  said  abstract  of  title  in  the  sum  of dollars  and 

for  costs,  including dollars  attorney's  fee,  and  asks  that  the  de- 
fendant (the  purchaser)  be  required  to  perform  his  contract  (or  that  his 
interest  in  the  property  heretofore  described  be  foreclosed  and  sold). 
That  the  lien  of  the  said  defendants,  and  each  of  them,  upon  the  above 
described  premises,  may  be  decreed  to  be  junior  and  inferior  to  plain- 
tiff's lien  thereon,  and  that  the  equity  of  redemption  of  said  defendants, 
and  each  of  them,  be  forever  barred  and  foreclosed;  that  a  special  exe- 
cution issue,  etc.  (Conclude  as  in  form  of  foreclosure  of  mortgage 
above  given,  making  such  change  as  is  necessary.) 

§  1148.  Of  the  judgment. — On  the  foreclosure  of  a 
mortgage  or  deed  of  trust,  the  court  must  render  judg- 
ment for  the  entire  amount  found  to  be  due — that  is, 
when  the  relation  of  debtor  and  creditor  exists  out- 
side of  the  mortgaged  property — and  must  direct  that 
the  mortgaged  property,  or  so  much  thereof  as  is  neces- 
sary, be  sold  to  satisfy  the  same,  with  interest  and 


§  1148.]  EEAL   ESTATE    MOKTGAGES.  377 

costs.28  Where  a  mortgage  provided  for  semi-annual 
payment  of  interest,  and  stipulated  that  a  failure  to  pay 
it  within  thirty  days  after  the  time  fixed  should  render 
the  entire  principal  due,  it  was  held  that  on  such  failure  to 
pay  the  mortgagee  had  a  right  to  declare  the  whole  debt 
due,  and  foreclose  his  mortgage  therefor.29  No  personal 
judgment  can  be  rendered  against  the  wife  of  a  mort- 
gagor in  a  foreclosure  proceeding  where  it  is  not  al- 
leged in  the  petition  that  the  debt  secured  by  the  mort- 
gage is  one  for  which  her  separate  property  is  liable,30 
unless  it  appears  that  she  is  a  party  to  the  note.  As  be- 
tween the  parties  to  a  mortgage,  a  judgment  at  law  on 
the  note  it  secures,  is  a  lien  from  the  date  of  recording 
the  mortgage;  but  a  judgment  on  a  note  secured  by 
mortgage  does  not  attach  as  a  lien  upon  the  mortgaged 
premises  from  the  date  of  the  mortgage  unless  the  prop- 
erty is  described  in  the  judgment,  and  it  is  there  ordered 
that  it  shall  be  a  lien  from  the  date  of  recording  the 
mortgage.31  The  decree  of  foreclosure  should  direct  a 
sale  of  so  much  of  the  mortgaged  premises  as  may  be 
necessary  to  satisfy  the  mortgaged  debt  and  costs,  and  it 
is  error  to  order  a  sale  of  the  entire  premises,  and  the 
payment  of  the  balance  remaining  after  satisfying  the 
debt  and  costs,  into  court.32  A  personal  judgment  can 
not  be  rendered  against  a  subsequent  purchaser  of  the 
mortgaged  property  who  is  not  a  party  to  the  note  or 
mortgage.33  But  where  the  purchaser  of  mortgaged 
premises  assumes  and  agrees  to  pay  the  mortgaged  debt 
as  a  part  of  the  consideration  of  the  purchase,  the  mort- 
gage may  be  foreclosed  and  a  personal  judgment  ren- 
dered against  him;  and  parol  evidence  is  admissible  to 

as  Code,     Sec.     4289;     Wood    v.  so  McLaughlin   v.    O'Rouke,     12- 

Sands,  4  G.  Gr.,  214;    Reunion  v.  459;  Knox  v.  Moser,  69-341. 

Kelsey,  10-443;  Anderson  v.  Reed,  si  Banta  v.  Wood,  32-469;   State 

11-177;   Carleton  v.  Byington,  24-  v.  Lake,  17-215;    Christy  v.  Dyer, 

172;    Weil  v.    Churchman,   52-253;  14-443. 

Reed    v.    King,    23-500;    Knox    v.  32  Malony    v.    Fortune,     14-417; 

Moser,  69-341;   Johnson  v.  Foster,  Trieber  v.  Shafer,  18-29;  see  W.  S. 

68-140;    Crowley    v.    Harader,    69-  M.  Co.  v.  Rutledge,  60-39;  Pike  v. 

83;  York  v.  Boardman,  40-57;  Bris-  Gleason,  60-150;  Code,  Sec.  4294. 

tol  Sav.  Bk.  v.  Stiger,  86-344.  83  Carleton  v.  Byington,  24-172. 

2»  Kramer  v.  Rebman,  9-114. 


378  REAL   ESTATE    MORTGAGES.  [§  1148. 

prove  such  an  agreement.34  Where  the  purchase  is  sub- 
ject to  a  mortgage,  and  the  amount  thereof  has  been  re- 
tained by  the  purchaser  out  of  the  purchase  money  he 
will  be  held  to  have  assumed  the  payment  of  the  mort- 
gage, not  so,  however,  where  there  is  an  exchange  of 
properties  unless  there  are  words  in  the  contract  or  deed 
indicating  the  assumption  of  a  personal  liability.35  If 
a  mortgagor  sells  only  a  portion  of  the  real  estate  cov- 
ered by  a  mortgage  and  retains  the  ownership  of  the  bal- 
ance, the  portion  he  retains  should  be  sold  first  under  the 
foreclosure  and  the  portion  in  the  hands  of  his  grantee 
should  be  sold  to  satisfy  any  balance  remaining  after  the 
sale  of  the  property  retained  by  the  mortgagor.36 

A  sale  of  property  under  a  judgment  or  foreclosure  for 
one  installment  of  the  debt,  discharges  the  property 
sold  after  redemption,  from  the  lien  of  the  mortgage  for 
other  installments.37  When  a  mortgagor  has  disposed 
of  all  his  interest  in  the  property  he  is  not  a  necessary 
party  to  a  foreclosure  suit,  but  in  such  a  case,  as  against 
the  owner  of  the  property,  the  amount  of  the  debt  should 
be  ascertained  by  the  court  and  a  special  execution  or- 
dered for  the  sale  of  the  property.38  Where  a  mort- 
gagee pays  taxes  and  other  prior  claims  to  protect  his 
own  lien,  he  should  only  be  allowed  six  per  cent,  interest 
on  such  advances  as  against  a  junior  incumbrancer  in  a 
foreclosure  proceeding,  though  he  may  have  an  agree- 
ment for  ten  per  cent,  with  the  mortgagor.39  The  form 
of  judgment  and  decree  of  foreclosure  given  below  will 
be  found  to  contain  sufficient  in  most  cases: 

34  Bowen  v.  Kurtz,  37-239 ;  Grei-  as  Bristol  Sav.  Bk.  v.  Stige'r,  86- 

ther  v.  Alexander,  15-470;  Aufricht  344. 

v.  Northrup,  20-61;  Myers  v.  Bow-  se  Mickley  v.  Tomlinson,  79-383. 

ers,   70-951;    Wood    v.    Smith,    51-  37  Esher     v.     Simmons,     54-269; 

156;  Ream  v.  Jack,  44-325;  Thomp-  Todd  v.  Davey,  60-532;  Micklewait 

son  v.    Bertram,   14-476;    Ross    v.  v.      Raines,      58-605;       Poweshiek 

Kennison,  38-396;   Lamb  v.  Tuck-  County  v.  Dennison,  36-244;  Harm* 

er,  42-118;  Edwards  v.  Thostenson,  v.  Palmer,  61-483. 

64-680;  Hull  v.  Alexander,  26-569;  as  Johnson  v.  Foster,  68-140,  and 

Iowa  L.  &  T.  Co.  v.  Mowery,  67-  cases  cited. 

113.  39  Butterfield  v.  Hungerford,  68- 

249. 


§  1148.]  REAL    ESTATE   MORTGAGES.  379 

FORM  OF  JUDGMENT  AND  DECREE  OF  FORECLOSURE. 

Title, 
Venue. 

Be  it  remembered,  that  on  this day  of ,  18 — ,  it  being 

afternoon  of  the day  of  the  said term  of  the  district  court 

aforesaid,  the  above  entitled  cause  came  on  in  its  order  for  hearing 
(name  of  plaintiff's  attorney),  appearing  as  counsel  for  plaintiffs  (here 
insert  names  of  plaintiffs),  and  (name  of  attorney  for  defendants),  ap- 
pearing as  counsel  for  defendants  (here  insert  names  of  defendants), 
and  the  court  having  inspected  the  original  notices  and  the  services 
thereon,  expressly  finds  that  all  the  foregoing  defendants  (insert  names 
of  defendants  served),  have  been  duly  and  legally  served  with  a  suf- 
ficient original  notice  according  to  law,  and  in  time  for  this  term  of 
court;  that  the  subject-matter  of  the  suit  and  the  person  of  the  defend- 
ants are  now  lawfully  in  the  jurisdiction  of  this  court;  therefore,  by 
order  of  the  court,  the  said  defendants  (insert  names  of  defendants 
served),  not  appearing  (if  any  of  the  defendants  appear  state  the  facts 
with  reference  thereto,  and  that  they  filed  answers,  or  as  the  case  may 
be),  and  on  motion  of  plaintiffs'  counsel  all  of  said  defendants  (or  as 
the  case  may  be)  are  adjudged  of  record  to  be  in  default.  It  is  therefore 
ordered  that  this  cause  proceed  to  final  determination,  and  after  inspec- 
tion of  the  pleadings,  the  evidence  and  proofs  of  the  plaintiff  (or  plain- 
tiff and  defendant,  as  the  case  may  be),  and  after  argument  of  counsel, 
the  court  being  duly  advised  in  the  premises,  it  is  ordered,  adjudged 
and  decreed,  that  the  issues  are  found  for  the  plaintiff;  that  the  allega- 
tions of  the  petition  are  true;  that  the  mortgage  and  notes  declared  on 
are  genuine,  just,  due  and  unpaid;  that  plaintiff  is  entitled  under  the 

stipulations  of  said  mortgage  to dollars  for  necessary  abstracts 

of  title,  and  to dollars  taxes  paid  out  on  the  premises  since  the 

giving  of  the  said  mortgage,  and  to  damages  upon  the  notes  declared 

upon  in  the  sum  of dollars;    therefore,  a  personal  judgment  is 

now  rendered  against  the  said  defendant  (naming  him),  for  the  aggre- 
gate sum  of dollars,  the  same  to  draw per  cent,  interest  per 

annum  from  this  date,  and  tho  costs  of  this  action  taxed  at dol- 
lars, including dollars  attorney's  fees  for  foreclosing  this  mort- 
gage, said  sums  being  hereby  declared  a  lien  on  the  mortgaged  premises, 
to  wit:  (here  describe  premises  as  in  the  petition),  from  the  date  of  the 
mortgage  to  wit  (here  insert  date  of  mortgage),  until  fully  paid.  Said 
mortgage  being  recorded  in  book ,  page ,  in  mortgage  rec- 
ords of county,  Iowa.  And  it  is  further  ordered,  adjudged,  and 

decreed,  that  a  special  execution  issue  against  the  mortgaged  premises 
to  make  said  total  sum  and  costs,  and  accruing  costs  (so  far  as  the 
same  is  practicable),  and  that  said  property,  or  so  much  thereof  as  is 
necessary,  be  sold  to  satisfy  the  amount  due,  with  interest  and  costs, 
thereunder,  according  to  law,  and  that,  at  the  election  of  plaintiff,  the 
clerk  of  this  court  is  authorized  to  insert  in  said  special  execution  a 
clause  requiring  the  sheriff  to  seize  any  property  of  the  defendant,  not 
exempt  from  execution,  to  satisfy  any  prospective  balance  on  said  judg- 


380  EEAL    ESTATE    MORTGAGES.  [§  11-19. 

ment  after  exhausting  the  mortgaged  premises,  or  that  after  the  return 
of  said  special  execution,  a  general  execution,  if  the  plaintiffs  so  elect, 
shall  issue  to  make  any  amount  then  remaining  unpaid.  And  on  and 
after  the  day  of  the  sale  the  defendants,  and  each  and  all  of  them, 
and  all  persons  claiming  by,  through  or  under  them,  are  forever  barred 
and  foreclosed  of  all  interests  and  equity  in  and  to  said  mortgaged  prem- 
ises, except  such  rights  of  redemption  as  are  especially  provided  by 
law,  and  that  if  said  real  estate  be  sold  and  not  redeemed,  as  provided 
by  law,  a  writ  of  possession  issue  to  the  sheriff  of  this  county,  com- 
manding him  to  put  the  purchaser  at  said  sale  in  possession  of  said 
premises.  (If  any  of  the  parties  are  not  served,  conclude  thus:  "and  as 
to  the  defendant ,  this  cause  is  continued  for  service.") 

§  1149.  Of  attorney's  fees. — A  stipulation  in  a  note 
or  mortgage  for  the  payment  of  an  attorney's  fee  in  case 
of  collection  by  suit,  is  not  usurious,  and  a  reasonable 
fee  may  be  recovered  in  the  action  without  averring  what 
amount  is  reasonable,40  and  formerly  the  attorney's  fee 
might  be  included  in  the  judgment.41  Where  it  is  stipu- 
lated that  "in  the  event  of  foreclosure"  a  certain  sum 
shall  be  taxed  as  attorney's  fee,  it  was  held  that  plaintiff 
could  not  recover  attorney's  fees  if  defendant,  before  de- 
cree of  foreclosure  was  entered,  paid  or  tendered  to  plain- 
tiff the  amount  of  the  mortgage  and  costs  accrued.42 
Attorney's  fees  are  only  recoverable  by  virtue  of  a  writ- 
ten contract  agreeing  to  pay,  and  when  judgment  is  re- 
covered on  a  written  contract,  made  since  July  4,  1880, 
containing  an  agreement  to  pay  an  attorney's  fee,  if  the 
court  is  satisfied  by  the  affidavit  of  the  attorney  engaged 
in  the  cause,  which  must  be  filed  with  the  original 
papers  at  the  commencement  of  the  action,  that  there  has 
been,  and  is  no  agreement,  express  or  implied,  between 
the  attorney  and  his  client  or  between  the  attorney  and 
any  other  person,  except  a  practicing  attorney  engaged 
with  him  as  attorney  in  the  case,  for  any  division  or 
sharing  of  the  fee  to  be  taxed,  and  that  the  defendant, 

« Nelson     v.     Everett,     29-184;  v.  Harder,  45-677;  Floyd  County  v. 

Weatherlyv.  Smith,  30-131;  McGill  Morrison,    40-188;     Bondurant    v. 

v.  Giffin,  32-445;  Williams  v.  Meek-  Taylor,  3  G.  Gr.,  561. 

er,    29-292;    Sawyer   v.    Perry,    62-  *i  Shugart  v.  Pattee,  37-422. 

238;     Hawley    v.    Howell,    60-79;  « Schmidt  v.  Potter,  35-426. 
Schmidt  v.  Potter,  35-426;  Johnson 


§  1149.]  EEAL    ESTATE   MORTGAGES.  381 

if  a  resident  of  the  county,  and  the  suit  is  not  aided  by 
attachment,  had  information  of  and  a  reasonable  op- 
portunity to  pay  the  debt  before  the  action  wafe  brought, 
unless  it  was  payable  at  a  particular  place  and  the  maker 
had  not  tendered  the  money  due  at  such  place,  there 
will  be  an  attorney's  fee  allowed  by  the  court  and  taxed 
as  a  part  of  the  costs,  in  an  amount  not  greater  than  ten 
per  cent,  for  the  first  two  hundred  dollars  or  fraction 
thereof,  of  the  amount  found  due;  for  the  excess  of  two 
hundred  dollars  up  to  five  hundred  dollars,  five  per  cent. ; 
for  the  excess  of  five  hundred  dollars  up  to  one  thousand 
dollars,  three  per  cent.;  and  for  all  in  excess  of  one  thou- 
sand dollars,  one  per  cent. 

But  not  to  exceed  one  half  of  the  above  fees  can  be  re- 
covered in  case  payment  is  made  after  the  commence- 
ment of  the  action  and  before  return  day,  and  in  case  of 
payment  before  judgment  and  after  the  return  day,  plain- 
tiff can  not  recover  to  exceed  three  fourths  of  the  said 
amounts,  and  no  fee  will  be  allowed  if  the  suit  has  not 
been  commenced  nor  any  expense  incurred,  nor  if  the  affi- 
davit herein  provided  for  is  not  filed  with  the  original 
papers.43  If  the  contract  was  executed  prior  to  July  4, 
1880,  and  it  provides  for  attorney's  fees,  such  sum  may 
be  allowed,  as  the  court,  from  the  evidence  offered,  may 
deem  reasonable.  But  in  case  of  default,  attorney's  fees 
can  not  be  allowed  and  taxed,  unless  evidence  is  intro- 
duced of  the  value  of  such  services.44  A  defendant  in  a 
foreclosure  suit  who  does  not  seek  to  redeem,  but  who 
claims  the  land  by  a  superior  title,  is  not  in  a  position 
to  object  to  the  amount  of  the  attorney's  fee  allowed  by 
the  court.45  The  affidavit  above  mentioned  may  be  in 
the  following  form: 

43  Code,  Sees.  3869  to  3871;  Spies-  Kelley,  88-475;  Black  v.  De  Camp, 

berger  v.  Thomas,  59-606;  Wilkins  78-718. 

v.    Troutner,    66-557;     Sweney    v.  **  First  Nat'l  Bk.  v.  Krance,  50- 

Davidson,      68-386;       Shenandoah  235. 

Nat'l  Bk.  v.  Marsh,  89-273;  Otcheck  «  Winnebago  County  v.  Brones, 

v.  Hostetter,    77-509;    Fletcher    v.  68-682;   but  see  Cook  v.  Gilchrist, 

82-277. 


382  EEAL    ESTATE    JIOKTGAGES.  [§  1150. 

FORM  OF  AFFIDAVIT  FOR  TAXATION  OF  ATTORNEY'S  FEES. 


Title,     ) 
Venue,  f     , 

State  of  Iowa, 
County 


I  ss. 


I, ,  being  duly  sworn,  on  oath  depose  and  say  that  I  am  the 

attorney  engaged  in  the  above  entitled  cause  for  the  plaintiff;  that 
there  has  been  and  is  no  agreement,  express  or  implied,  between  this 
affiant  and  his  client,  or  between  this  affiant  and  any  other  person, 
except  (name  of  attorney  associated  with  him,  if  any),  who  is  a  prac- 
ticing attorney  engaged  with  this  affiant  as  attorney  in  this  cause,  for 
any  division  or  sharing  of  the  fee  to  be  taxed  herein;  that  this  affiant 
is  a  regular  attorney,  and  the  fee  to  be  taxed  herein  is  in  compensation 
for  services  actually  rendered  in  this  cause.  That  this  action  is  not 
aided  by  attachment,  that  the  defendant  (naming  the  one  against  whom 

personal  judgment  is  sought)  has  for  more  than  days  prior  to 

the  commencement  of  this  action  Ead  actual  notice  that  said  note  and 
mortgage  was  in  my  possession  for  collection  at  (naming  the  place) 
and  has  during  said  time  repeatedly  been  urged  by  me  to  pay  the  same. 


(Add  certificate  of  officer.) 

§  1150.  Of  the  execution, — A  special  execution  is- 
sues for  the  sale  of  the  mortgaged  property,  or  sufficient 
to  satisfy  the  debt  with  interest  and  costs,  and  this  sale 
is  subject  to  redemption,  as  in  case  of  sales  made  under 
a  general  execution.46  If  the  mortgaged  property  does 
not  sell  for  sufficient  to  satisfy  the  execution,  a  general 
execution  may  issue  against  the  mortgagor,  unless  the 
parties  have  stipulated  otherwise.47  But  where  a  mort- 
gage is  made  by  one  person  to  secure  the  debt  of  another, 
the  mortgagor  not  signing  a  note  or  bond  and  becoming 
liable  in  no  way,  except  as  provided  in  the  mortgage,  110 
general  execution  can  issue  against  him.48  A  stipula- 
tion in  the  mortgage,  that  a  general  execution  shall  not 
issue,  is  a  bar  to  a  general  judgment  on  the  note,49  and 
where  an  indorsement  was  made  on  the  note,  to  the 
effect  that  it  "is  confined  to"  the  mortgage  securing  it, 

«  Code,  Sec.  4289;  see  chapter  on  253;  see  Newbury  v.  Rutter,  38-179. 

Redemption.  •*»  Chittenden  v.  Gossage,  18-157; 

47  Code,  Sec.  4290;  Chittenden  v.  McLaughlin  v.  O'Rouke,  12-459; 

Gossage,  18-157;  Anderson  v.  Reed,  but  see  Newbury  v.  Rutter,  38-179. 

11-177;  Weil  v.  Churchman,  52-  49  Kenyon  v.  Kelsey,  10-443. 


§  1150.]  KEAL   ESTATE    MORTGAGES.  383 

the  payee  was  confined  to  his  remedy  of  foreclosure,  and 
was  not  entitled  to  a  personal  judgment.50  A  decree 
foreclosing  a  title  bond  as  a  mortgage,  may  provide  for 
the  issuance  of  a  general  execution,  for  any  balance  due 
after  sale  9f  the  property  on  special  execution.51  If  a 
wife  joins  her  husband  in  executing  a  deed  of  trust 
upon  land  purchased  by  her,  to  secure  notes  made  by  the 
husband  alone,  for  the  purchase  money,  no  personal 
decree  can  be  rendered  against  her.52  A  decree  of  fore- 
closure of  a  title  bond  may  require  that  the  vendor  exe- 
cute a  deed  with  all  the  covenants  stipulated  in  the  bond, 
provided  the  full  amount  of  the  note  or  judgment  is  re- 
alized or  paid  by  the  purchaser.53  The  following  form 
of  special  execution  may  be  used: 

FORM  OF  SPECIAL  EXECUTION. 

The  State  of  Iowa. 
To  the  sheriff  of county,  greeting: 

Whereas  (insert  name  of  plaintiff),  filed  a  petition  in  the  

court  of county,  for  the  foreclosure  of  a  certain  mortgage  upon 

the  real  estate  hereinafter  described,  making  (here  insert  names  of  de- 
fendants) defendants  therein,  and  whereas  the  district  court  at  the 

term  thereof  A.  D.  18—,  viz. :     On  the day  of ,  18—, 

in  said  suit  rendered  judgment  in  favor  of  said  plaintiff,  and  against 
(here  insert  name  of  defendant  against  whom  judgment  was  rendered), 

for  the  sum  of  dollars  damages,  dollars  costs,  including 

attorney's  fees,  with  interest  on  said  damages,  at  the  rate  of per 

cent,  per  annum  from  the  date  of  said  judgment,  and  rendered  a  decree 
in  said  suit,  forever  barring  and  foreclosing  the  equity  of  redemption  of 
said  defendants  in  and  to  said  mortgaged  premises,  and  ordering  that 
the  same,  or  so  much  thereof  as  shall  be  necessary,  be  sold  to  satisfy 
said  judgment,  with  the  interest  and  costs  aforesaid,  and'  ordered  a  spe- 
cial execution  to  issue.  Therefore,  you  are  commanded  that  of  the  fol- 
lowing described  real  estate  in county,  Iowa,  viz.:  (here  describe 

real  estate)  or  so  much  thereof  as  may  be  necessary  by  levy  and  sale, 
pursuant  to  the  statute  in  such  case  made  and  provided,  you  cause  to  be 

made  the  sum  of dollars  debt,  and  the  sum  of dollars  costs, 

including  attorney's  fees,  with  interest  as  aforesaid,  and  all  accruing 
costs,  and  of  this  writ  make  due  return  to  the  court  within  seventy  days 
hereof. 

so  Elmore  v.  Higgins,  20-250.  62  Anderson  v.  Reed,  11-177. 

ei  Grimmel  v.  Warner,  21-11.  53  Wall  v.  Ambler,  11-274. 


38-i  KEAL    ESTATE    MORTGAGES.  [§§  1151,  1152. 

Witness, ,  clerk  of  the  district  court  of county,  and  the 

seal  of  said  court  affixed  at  my  office  in ,  in  said  county,  this 

day  of ,  18—. 

[Seal.]  ,  clerk,  etc. 

§  1151.  Of  assignment  to  junior  incumbrancers. 
—At  any  time  prior  to  the  sale  a  person  having  a  lien 
on  the  property  which  is  junior  to  the  mortgage,  is  en- 
titled to  an  assignment  of  all  the  interest  of  the  holder 
of  the  mortgage  by  paying  him  the  amount  secured  with 
interest  and  costs  together  with  the  amount  of  any 
other  liens  of  the  same  holder  which  are  para- 
mount to  his,  and  he  may  then  proceed  with  the 
foreclosure  or  discontinue  it  at  his  option.54  And 
in  such  case  it  is  sufficient  if  the  junior  incum- 
brancer  tender  to  the  mortgagee  the  amount  secured  by 
his  mortgage  with  interest  and  costs  before  the  fore- 
closure sale,  though  the  tender  be  not  accepted  until 
after  the  sale.55  Under  section  4292  of  the  code  the 
junior  mortgagee  is  only  entitled  to  an  assignment  of 
the  prior  mortgage  as  to  the  same  land  covered  by  his 
own  mortgage.56 

§  1152.  Of  the  surplus  arising  from  the  sale. — If 
there  is  any  surplus  remaining  after  satisfying  the  mort- 
gage and  costs,  and  if  there  be  no  other  lien  upon  the 
property,  such  surplus  must  be  paid  to  the  mortgagor.57 
While  such  surplus,  when  remaining  in  the  hands  of  the 
sheriff  or  under  the  control  of  the  court,  belongs  to  sub- 
sequent lien-holders  in  the  order  of  their  priority,  and 
should  be  so  awarded  by  the  court;  yet  when  the  execu- 
tion does  not  direct  the  disposition  of  such  surplus,  and 
the  sheriff,  acting  in  good  faith  and  without  knowledge 
of  subsequent  liens,  applies  the  money  upon  other  execu- 
tions in  his  hands,  against  the  mortgagor,  he  is  not  liable 
therefor  to  such  lien-holders.58  And  when  a  surplus  was 
realized  by  the  sheriff,  from  the  sale  of  a  homestead  under 

s*  Code,  Sec.  4292;  Grant  v.  Par-  se  Grant  v.  Parsons,  67-31. 

sons,  67-31;  Harbach  v.  Colvin,  73-  BT  Code,  Sec.  4291. 

638;  Sessions  v.  Kent,  75-601.  ss  polk  County  v.  Sypher,  17-358. 

55  Marshall  v.  Ruddick,  28-487. 


§§  1153,   1154.]  EEAL    ESTATE    MORTGAGES.  385 

special  execution,  and  the  defendant  permitted  the  sher- 
iff, without  objection,  to  apply  it  on  other  executions,  and 
turn  the  same  over  to  such  execution  creditors,  the  debtor 
was  estopped  from  recovering  such  surplus  from  the 
sheriff.59  So  a  sheriff  may  apply  a  surplus  on  other  exe- 
cutions in  his  hands.60  And  he  may  be  garnished  by  a 
creditor  of  the  mortgagor.61 

§  1153.  Of  other  liens.— If  there  are  any  other  liens 
on  the  property  sold,  or  other  payments  secured  by  the 
same  mortgage,  they  must  be  paid  off  in  their  order, 
and  if  the  money  secured  by  any  such  lien  is  not  yet  due, 
a  suitable  rebate  of  interest,  to  be  fixed  by  the  court,  or 
judge  thereof,  must  be  made  by  the  holder  thereof,  or 
his  lien  on  the  property  will  be  postponed  to  those  of  a 
junior  date,  and  if  there  are  none,  such  balance  must  be 
paid  to  the  mortgagor.62 

§  1154.  Of  the  sale,  and  of  satisfaction  of  the 
mortgage. — As  far  as  practicable,  only  sufficient  prop- 
erty can  be  sold  to  satisfy  the  mortgage.63  And  a  re- 
fusal of  the  sheriff  to  sell  the  property  in  parcels  when 
it  is  practicable  and  when  the  value  of  the  property  ex- 
ceeds the  debt,  invalidates  the  sale.64  When,  under  a 
mortgage  made  by  joint  tenants,  a  part  of  the  property 
is  sold  on  the  execution,  upon  a  plan  of  division  preju- 
dicial to  the  rights  of  one  of  such  owners,  the  validity  of 
such  sale  is  not  affected  thereby,  and  the  judgment  cred- 
itor can  not  complain  if  the  judgment  is  satisfied  by  the 
sale.65  But  in  such  case  the  owner  who  has  been  wronged 
may  maintain  an  action  against  his  co-tenant  for  re-im- 
bursement.66  Whenever  the  amount  due  on  any  mort- 
gp^e  is  paid,  the  mortgagee  or  those  legally  acting  for 
him  must  acknowledge  satisfaction  thereof  on  the  mar- 
gin of  the  record  of  the  mortgage,  or  by  the  execution  of 

so  Brumbaugh   v.    Zollinger,   59-  es  Code,  Sec.  4294;  Grapengather 

384.  v.  Fejervary,  9-163. 

so  Payne  v.  Billinsham.  10-360.  «*  Grapengather  v.  Fejervary,  9- 

61  Hoffman  v.  Wetherell,  42-89.  163;    Lay  v.   Gibbons,   14-377,  and 

62  Code,   Sec.  4293;   Nat'l  Bk.  v.  cases  cited. 

Dean,  86-656.  65  Miller  v.  Felkner,  42-458. 

66  Same  as  No.  65. 
Vol.  H-25 


386  EEAL    ESTATE    MORTGAGES.  [§  1154. 

an  instrument  in  writing,  .referring  to  the  mortgage, 
which  must  be  duly  acknowledged  and  recorded,  and  if 
he  fails  to  do  so  within  thirty  days  after  being  requested 
in  writing,  he  will  forfeit  to  the  mortgagor  the  sum  of 
twenty-five  dollars.07  No  particular  form  of  words  is 
necessary  to  release  a  mortgage;  no  conveyance  is  neces- 
sary to  accomplish  that  purpose;  satisfaction  may  be 
entered  as  provided  by  statute  upon  the  margin  of  the 
record  of  the  mortgage,  but  this  method  is  not  exclusive, 
and  when  a  mortgage  is  so  satisfied  the  person  so  satis- 
fying it  must  be  identified  and  his  signature  must  be  wit- 
nessed by  the  recorder  or  his  deputy.68  It  has  been  held 
that  the  penalty  for  failure  to  satisfy  a  mortgage  after 
notice  to  that  effect  has  been  given,  is  incurred  when 
the  mortgagee  fails  to  do  so  within  the  time  provided 
by  statute  after  such  request;  and  an  entry  of  satisfac- 
tion after  that  time,  even  though  made  before  suit  is 
brought  for  the  penalty,  will  not  prevent  its  recovery  by  * 
the  mortgagor.69  But  the  assignee  of  a  mortgage  by 
an  assignment  not  recorded,  is  not  subject  to  the  statu- 
tory penalty  imposed  upon  a  mortgagee  for  a  failure 
to  enter  satisfaction  of  his  mortgage  of  record  when 
paid.70  In  such  a  case  the  satisfaction  mu^t  be  made  by 
the  original  mortgagee.71  The  notice  to  a  mortgagee  to 
cancel  his  mortgage  may  be  in  the  following  form: 

FORM  OF  NOTICE  TO  MORTGAGEE  TO  CANCEL  MORTGAGE. 

To  (name  of  mortgagee):     You  are  hereby  notified  that  the  mort- 
gage held  by  you,  dated  the day  of ,  18—,  and  executed  by 

(here  insert  names  of  mortgagors)  to  you  on  the  following  described 
real  estate,  viz.:  (here  insert  description  of  premises)  and  which  is  re- 
corded in  book on  page  of  mortgage  records  of  • 

county,  Iowa,  has  been  fully  paid  off  and  you  are  required  to  acknowl- 
edge satisfaction  thereof  properly  of  record  as  provided  by  law,  within 
thirty  days  from  date  hereof. 

Dated  the day  of ,  18—. 

,  mortgagor. 

67  Code     Sec.    4295;     Deeter    v.          e»  Deeter  v.  Crossley,  26-180. 
Crossley,' 26-180;  Lowe  v.  Fox,  56-          TO  Lowe  v.  Fox,  56-221 
221-  Kennedy  v.  Moore,  91-39.  "  Kennedy  v.  Moore,  91-39. 

es  Code,    Sec.    4295;     Waters    v. 
Waters,  20-363. 


§§  1155,  1156.]  REAL   ESTATE    MORTGAGES.  387 

§  1155.  Of  theduty  of  the  clerk. — Whenever  a  judg- 
ment of  foreclosure  is  entered  in  any  court,  the  clerk 
thereof  must  make  upon  the  margin  of  the  record  of  the 
mortgage  foreclosed,  in  the  recorder's  office,  a  minute 
showing  that  said  mortgage  has  been  foreclosed,  and  in 
what  court,  and  giving  the  date  of  the  decree,  and  when 
the  judgment  is  fully  paid  off  and  satisfied  upon  the  judg- 
ment docket  of  said  court,  the  clerk  must  enter  satis- 
faction in  full  upon  the  margin  of  such  mortgage,  for 
which  he  is  allowed  a  fee  of  twenty-five  cents  to  be  taxed 
as  costs  in  the  case.72 

§  1156.  Of  foreclosure  of  title  bonds.— An  out- 
standing title  bond  for  the  conveyance  of  lands  may  be 
foreclosed  like  a  mortgage  when  any  part  of  the  pur- 
chase money  remains  unpaid  after  the  day  fixed  for  pay- 
ment, whether  time  is  or  is  not  of  the  essence  of  the  con- 
tract, and  in  such  cases  the  vendee  will  be  treated  as  the 
mortgagor  of  the  property,  and  his  rights  foreclosed  ac- 
cordingly. The  petition  in  such  case  should  ask  the 
court  to  require  the  purchaser  to  perform  his  contract  or 
to  foreclose  and  sell  his  interest  in  the  property.73  And 
in  case  of  a  foreclosure  of  a  title  bond  no  tender  of  con- 
veyance is  required.74 

But  the  vendor  under  a  title  bond  is  not  confined  to  his 
remedy  by  foreclosure.  He  may  proceed  at  law  for  the 
purchase  money  or  any  unpaid  and  matured  installment 
of  it.75  The  remedy  by  foreclosure  is  one  which  did  not 
heretofore  exist,  but  it  does  not  prohibit  the  vendor  from 
declaring  a  forfeiture  of  the  contract  in  compliance  with 
its  terms.76  The  assignee  of  a  contract  for  the  sale  of 
real  estate,  by  accepting  the  assignment  thereof,  be- 
comes a  party  to  the  contract  and  personally  liable 

72  Code,  Sec.  4296.  74  Stevenson  v.  Polk,  71-278. 

73  Code,  Sees.  4297,  4298;     Hart-          75  Hershey    v.    Hershey,    18-24; 
man  v.   Clarke,  11-510;    Tupple  v.      Page  v.  Code,  6-153. 

Viers,  14-575;  Hershey  v.  Hershey,          76  Mickelwait  v.  Leland,  54-662; 
18-24;  Pierson  v.  David,  1-23;  Blair      Iowa  R.  L.  Co.  v.  Mickel,  41-402; 
v.  Marsh,  8-144;   Gamut  v.  Gregg,      Johnson  v.  Thornton,  54-144. 
37-573;  Page  v.  Cole,  6-153;  Rubel- 
man  v.  Rummel,  72-40. 


288  REAL    ESTATE    MORTGAGES.  [§1157. 

thereon  for  the  purchase  money  unpaid.77  The  vendee 
to  an  outstanding  title  bond  can  not,  by  abandoning  the 
contract  or  offering  to  surrender  it,  divest  himself  of  his 
interest  and  liability.78 

Where  the  vendor  proceeds  to  foreclose  and  sell  the 
property  he  loses  his  lien  for  any  balance  of  the  purchase 
money  not  paid  by  the  foreclosure  sale.79  And  it  seems 
that  the  assignee  of  a  vendor  of  real  estate  who  acquires 
the  note  given  for  the  purchase  price,  with  an  agree- 
ment that  he  shall  have  the  benefit  of  the  security,  may, 
in  case  of  non-payment,  bring  action  in  his  own  name 
against  the  vendee  and  all  persons  claiming  under  him 
with  notice.80 

§  1157.  Of  the  cancellation  of  real  estate  con- 
tracts.—Any  contract  hereafter  made  for  the  sale  of  real 
estate  in  this  State  and  which  provided  for  the  forfeiture 
of  the  vendee's  rights  therein  on  the  happening  of  cer- 
tain conditions,  will  not  be  forfeited  or  canceled  unless 
thirty  days  before  a  declaration  of  forfeiture  is  made  a 
written  notice  be  served  on  the  vendee  or  assignee,  notice 
of  whose  right  as  assignee  has  been  conveyed  to  the  ven- 
dor and  on  the  party  in  possession  of  said  real  estate, 
which  notice  must  be  served  in  the  same  manner  and  by 
the  same  parties  authorized  to  serve  original  notices,  and 
contain  a  declaration  of  an  intention  to  forfeit  said  con- 
tract and  the  reasons  therefor.81  For  th?  period  of 
thirty  days  after  the  service  of  said  notice,  the  vendee  or 
those  claiming  under  him,  may  discharge  any  unpaid 
payments  and  costs  of  service  of  notice  of  forfeiture,  <fr 
perform  any  condition  broken;  and,  if  said  payments  are 
made  or  said  conditions  broken  are  performed  within 
said  period  of  thirty  days,  the  right  to  forfeit  for  default 
occurring  before  said  notice  is  served  is  terminated.82 
The  requirements  contained  in  this  section  are  operative 
in  all  cases  where  the  intention  of  the  parties,  as  gath- 
er Wightman  v.  Spofford,  56-145.  so  Blair  v.  Marsh,  8-144. 

78  Mullen  v.  Bloomer,  9-360.  si  Code,  Sec.  4299. 

79  Todd    v.    Davey,    60-532,    and         82  Code,  Sec.  4300. 
cases  cited. 


§  1158.]  BEAL    ESTATE    MORTGAGES.  389 

ered  from  the  contract  and  from  the  surrounding  circum- 
stances, is  to  sell  or  agree  to  sell  an  interest  in  real 
estate,  any  contract  or  agreement  of  the  parties  to  the 
contrary  notwithstanding.83 

§  1158.  Of  pleading,  practice,  etc. — In  a  proceeding 
in  equity  to  enjoin  the  summary  foreclosure  of  a  mort- 
gage under  the  code  of  1851,  it  was  held  that  the  court 
might  decree  a  foreclosure  of  the  mortgage  in  favor  of 
the  respondent  without  his  filing  a  cross-petition  praying 
for  that  relief,  or  his  making  such  prayer  in  his  answer.84 

In  a  proceeding  to  foreclose  a  mortgage  where  the  an- 
swer admits  the  execution  of  the  note  and  mortgage,  and 
does  not  deny  that  the  amount  claimed  in  the  petition  is 
due  and  owing,  there  is  nothing  for  the  plaintiff  to 
prove.85  Where  the  petition  to  foreclose  a  mortgage  asks 
a  judgment  on  a  note  and  a  foreclosure  of  the  mortgage, 
there  is  no  mingling  of  law  and  equity  in  one  proceeding, 
and  the  judgment  prayed  for  is  authorized  by  the  stat- 
ute.86 Xo  greater  relief  can  be  given  in  a  decree  of  fore- 
closure than  is  prayed  for  in  the  petition.87  The  mort- 
gagor can  not,  in  a  separate  action,  recover  from  the  pur- 
chaser in  possession  for  rents  and  profits,  unless  he 
shows  that  he  was  prevented  by  accident,  surprise,  fraud 
or  mistake,  from  considering  the  rents  and  profits  when 
he  made  his  offer  to  redeem.88  When  a  court  renders  a 
decree  of  foreclosure  on  a  mortgage  and  awards  a  special 
execution,  it  can  not  order  a  stay  of  execution  for  a  given 
time.89  When  a  plaintiff  has  made  a  junior  mortgagee 
a  party  dcfenJant  in  a  foreclosure  case,  he  may  dismiss 
his  case  as  to  him  unless  he  appear  and  insist  upon  an 
adjustment  of  his  rights  b/  a  deciee;  nor  can  one  de- 
fendant object  to  an  order  dismissing  a  co-defendant.90 
When  the  vendee  takes  possession  of  the  real  estate  pur- 
chased, with  the  consent  of  the  vendor,  and  fails  to  pay 

ss  Code,  Sec.  4301.  «~  McLaughlin   v.    O'Rouke,    12- 

si  Westfall  v.  Lee,  7-12.  459. 

ss  Cooley  v.  Hobart,  8-358.  ,  88  Barrett  v.  Blackmar,  47-565. 

86  Same  as   No.  85.  89  Carroll  v.  Reddington,  7-386. 

»o  Heimstreet  v.  Winnie,  10-430. 


390  KEAL    ESTATE    MORTGAGES.  [§  1158. 

the  purchase  money  according  to  his  contract,  the  vendor 
may  maintain  an  action  against  the  vendee  for  the  pos- 
session without  returning  such  part  of  the  purchase 
money  as  has  been  paid,  or  tendering  back  the  notes  of 
the  vendee  given  for  the  balance  of  the  purchase  price.91 
An  action  to  foreclose  a  title  bond  is  local  in  its  nature, 
and  is  properly  brought  in  the  county  where  the  land  is 
situated.92  A  foreclosure  for  an  installment  due,  ac- 
cording to  the  terms  of  the  title  bond,  before  the  ma- 
turity of  the  principal  amount  and  the  sale  of  the  prop- 
erty thereunder,  exhausts  the  remedy  of  the  creditor  in 
respect  to  the  land,  and  passes  a  clear  title  thereto  to  the 
purchaser.93  Persons  not  made  parties  to  a  foreclosure 
of  a  title  bond  or  mortgage  are  not  affected  by  the  de- 
cree.94 In  an  action  at  law  upon  a  promissory  note,  exe- 
cuted for  a  whole  or  a  part  of  the  purchase  price  of  the 
land  which  the  payee  covenants  to  convey  upon  its  pay- 
ment, the  grantor  can  not  recover  without  showing  per- 
formance on  his  part-,  either  by  tender  of  a  deed,  or  offer 
to  convey.95  And  in  an  action  on  a  title  bond  to  re- 
cover a  balance  of  the  purchase  money  remaining  un- 
paid, it  is  error  for  the  court  to  declare  the  bond  for- 
feited and  the  land  discharged  from  the  same.  In  such 
case  judgment  should  be  rendered  for  the  amount  due, 
the  bond  foreclosed  like  a  mortgage,  and  the  property 
ordered  sold  to  satisfy  the  judgment.96  An  action  to 
foreclose  a  mortgage  or  title  bond,  is  triable  de  novo  in 
the  supreme  court.97  The  burden  is  on  one  claiming 
that  a  deed  absolute  on  its  face  was  given  to  secure  a 
loan  to  establish  that  fact.98  It  is  held  that  instruments 
requiring  an  acknowledgment  before  an  officer  ought  not 
to  be  set  aside  without  clear  and  satisfactory  evidence.99 
In  an  action  to  foreclose  a  mortgage  against  a  subse- 

91  Page  v.  Cole,  Q-153.  es  Zebley  v.  Sears,  38-507;  School 

92  John  v.  Orcutt,  9-350.  Dist.  v.  Rogers,  8-316;  Berryhill  v. 

93  Poweshiek    County   v.    Denni-      Byington,  10-223. 

son,  36-244;  Escher  v.  Simmons,  54-  96  Gamut  v.  Gregg,  37-573. 

269;  Todd  v.  Davey,  60-532;  Harms  97  Wells  v.  Lawrence,  65-373. 

v.  Palmer,  61-483.  98  Allen  v.  Fogg,  66-229. 

94  Dukes  v.  Turner,  44-575.  »9  Herrick  v.  Musgrove,  67-63. 


§  1158.]  EEAL    ESTATE    MORTGAGES.  391 

quent  purchaser  of  the  mortgaged  premises,  who  takes 
a  conveyance  subject  to  the  mortgage,  and  agrees  to  pay 
off  the  same  as  a  part  of  the  purchase  price,  it  is  a  good 
defense  that  the  mortgagor  had  no  title  to  the  premises, 
or  that  his  representations  respecting  the  same  were 
false  and  that  the  defendant  was  induced  by  such  false 
representations  to  assume  the  payment  of  the  mortgage.1 
No  decree  of  foreclosure  can  be  legally  rendered  against 
a  party  unless  it  is  properly  prayed  for  in  the  petition.2 
In  all  foreclosure  cases  the  decree  must  be  for  the  sale 
of  "the  premises  or  so  much  thereof  as  is  necessary  to  be 
sold  to  satisfy  the  amount  due  with  interests  and  costs."3 
A  judgment  on  a  note  secured  by  a  mortgage  upon  real 
property  against  the  maker  and  sureties  thereon,  will  not 
operate  to  discharge  the  lien  of  the  mortgage.4  Any  de- 
fense or  counter  claim  may  be  pleaded  to  an  action  for 
the  foreclosure  of  a  mortgage  which  is  good  as  such.5 
And  in  the  foreclosure  of  a  title  bond,  it  is  a  sufficient  de- 
fense by  one  vendee  that  he  has  sold  out  all  his  interest 
to  his  co-defendant  with  the  knowledge  and  consent  of 
the  plaintiff,  and  has  been  discharged  from  liability  on 
the  note  by  the  giving  of  other  security  by  his  co-de- 
fendant.6 

When  the  mortgaged  land,  which  is  not  divisible,  is 
sold  for  the  payment  of  an  installment  due  upon  a  mort- 
gage and  a  surplus  remains,  the  court  will  retain  custody 
thereof  and  apply  it  upon  the  other  installments  as  they 
become  due.  After  suit  is  commenced  for  an  installment 
due,  the  court  retains  jurisdiction  until  the 'whole  debt 
falls  due,  and  will  then  order  a  decree  for  the  same.7 
A  certificate  of  purchase  at  a  mortgage  foreclosure  sale 
is  not  negotiable,  but  is  assignable  subject  to  prior 
equities,  against  the  assignor.8  If  plaintiff  has  the  notes 

1  Benedict  v.  Hunt,  32-28.  e  Arms  v.  Stockton,  12-327. 

2  Ballard  v.  Koons,  10-534;  White          ~  McDowell  v.  Lloyd,  22-448,  and 
v.  Watts,  18-75.  cases    cited;      see    Burroughs     v. 

s  Maloney    v.    Fortune,    14-417;  Ellis,  76-649;  Morgan  v    Kline   77- 

Greiber  v.  Shafer,  18-29.  681. 

*  Jordan  v.  Smith,  30-499.  s  Van  Gorder  v.  Lundy,  66-448. 
5  Moberly  v.  Alexander,  19-162. 


EEAL    ESTATE    MORTGAGES.  [§  1158. 

and  mortgage  in  his  possession  and  introduces  them  in 
evidence,  it  is  presumptive  evidence  of  ownership,  and 
generally  is  sufficient.9  A  mortgage  given  for  a  larger 
sum  than  the  legitimate  indebtedness,  in  the  absence  of 
explanation,  is  a  badge  of  fraud  and  may  be  in  and  of 
itself  sufficient  to  establish  fraudulent  intent.10  A  hus- 
band made  to  his  wife  a  mortgage  without  consideration 
and  she  assigned  it  to  plaintiff;  a  creditor  of  the  wife 
had  an  attachment  against  her  alone,  levied  on  the  prop- 
erty; it  was  held  that  the  wife  had  no  interest  in  the 
property  which  could  be  attached  and  the  attachment 
created  no  lien  superior  to  the  rights  of  the  assignee  of 
the  mortgage.11  Where  mortgaged  premises  have  sub- 
sequently been  sold  in  parcels  to  different  purchasers, 
each  must  bear  or  contribute  proportionately  to  the 
discharge  of  the  incumbrance  and  not  in  the  inverse 
order  of  alienation.12  The  fact  that  a  mortgage  was  ex- 
ecuted to  secure  the  payment  of  a  debt  previously  con- 
tracted will  not  invalidate  it,  nor  does,  it  make  any  differ- 
ence that  it  was  made  by  one  of  the  members  of  a  part- 
nership and  his  wife  to  secure  a  debt  of  the  firm.13  In 
an  action  to  foreclose  a  mortgage  where  plaintiff  alleges 
that  defendant  claims  to  have  a  lien  thereon,  but  that 
it  is  inferior  to  the  mortgage,  and  defendant's  answer  ad- 
mits the  mortgage  and  sets  up  his  lien,  and  alleges  that 
it  is  superior  to  plaintiff's  mortgage,  the  defendant  has 
the  burden  of  establishing  the  superiority  of  his  lien.14 

It  is  a  good  defense  that  the  property  is  so  encumbered 
with  judgments  against  the  vendor  as  to  make  it  impos- 
sible for  him  to  fulfill  his  contract  by  making  a  clear 
title,15  or  that  the  land  has  already  been  sold  on  a  judg- 
ment,16 or  that  the  title  has  failed.17  And  in  an  action 
on  notes,  given  for  the  purchase  money  of  land,  the  con- 
s' Same  as  No.  8.  Ruddick,  2-423;  Griffith  v.  Lovell, 

10  Taylor    v.    Wendling,    66-562,      26-226;    Huff  v.  Farwell,  67-298. 
and  cases  cited;  Carson  v.  Byers,          13  Cooley  v.  Hobart,  8-358. 
67-606;  Lombard  v.  Dows,  66-243.  1*  Vaughn  v.  Eckler,  69-332. 

11  Taylor  v.  Wendling,  66-562.  is  Lyon  v.  O'Kell,  14-233. 

12  Barney  v.  Myers,  28-472;  Mas-          10  Lyon  v.  Day,  15-469. 

sie    v.    Wilson,    16-390;    Bates    v.          IT  Ruddick  v.  Lloyd,  15-441. 


§  1159.]  REAL    ESTATE    MORTGAGES.  393 

veyance  of  which  was  to  be  made  on  their  payment,  it  is 
a  good  defense  that  plaintiff  has  not  delievered  or  ten- 
dered a  deed.18  But  if  a  judgment  was  obtained  without 
tender  of  a  deed  being  made,  and  the  land  was  sold  on 
such  judgment,  such  failure  to  tender  a  deed  would  not 
affect  the  judgment  or  impair  the  title  of  the  purchaser.19 
But  this  rule  requiring  tender  of  a  deed  does  not  obtain 
in  equity  cases.20  No  receiver  can  be  appointed  unless 
the  mortgage  creates  a  lien  upon  the  mortgagor's  right 
of  possession  and  on  the  rents  and  profits  accruing  there- 
from.21 

§  1159.  Of  redemption. — An  incumbrancer  not  made 
a  party  to  a  foreclosure  proceeding  is  not  cut  off  from  his 
right  to  redeem  by  a  sale  thereunder.22  But  a  purchaser 
of  land  at  a  sale  under  foreclosure  to  which  a  junior  lien 
holder  was  not  made  a  party  may  maintain  a  cross  action 
to  compel  or  bar  redemption.23  And  a  sale  under  a  de- 
cree of  foreclosure  is  subject  to  redemption  as  in  cases 
of  such  sales  under  general  execution.24  But  parties 
may  stipulate  away  the  right  of  redemption  as  to  them- 
selves.25 If  the  land  covered  by  the  bond  or  mortgage 
has  been  divided  into  parcels,  each  parcel  must  con- 
tribute its  share  to  the  payment  of  the  debt  in  redeem- 
ing the  same  from  a  foreclosure  sale  of  the  whole.26  The 
grantee  of  the  mortgagor,  becoming  such  before  judg- 
ment is  rendered,  may  redeem  from  sale  under  judgment 
of  foreclosure  for  part  of  the  debt,  and  hold  the  prop- 
erty free  of  any  lien  under  the  mortgage  or  under  the 
judgment  against  his  grantor  for  the  balance  of  the 

is  Berryhill  v.  Byington,  10-223;  ly  v.  Rusch,  15-99;  Johnson  v.  Har- 

School  Dist.  v.  Rogers,  8-316.  mon,   19-56;    but  see    Schlawig  v. 

is  Cole  v.  Gill,  14-527.  Fleckenstein,  80-668. 

20  Winters   v.    Sherman,    20-295;  23  Anderson  v.  Wyant,  77-498. 
Rutherford  v.  Haven,  11-587,  and  24  Code,    Sec.    4289;     Barrett    v. 
cases  cited.  Blackmar,  47-565;  Am.  B.  H.  Ass'n 

21  American  Inv.  Co.  v.  Farrar,  v.  Burlington  M.  L.  Ass'n,  61-464; 
87-437.  Newell    v.    Pennick,    62-123;     see 

22  White  v.  Watts,  18-74;   Heim-  chapter  on  Redemption, 
street  v.  Winnie,  10-430;   Street  v.  25  Cook  v.  McFarland,  78-528. 
Beal,  16-68:  Bleidorn  v.  Abel,  6-5;  26  Dukes  v.  Turner,  44-575;  Bar- 
Parrott  v.  Hughes,  10-459;  Donnel-  ney  v.  Myers,  28-472. 


394  EEAL    ESTATE    MORTGAGES.  [§  Ilo9. 

debt.27  It  is  held  that  where  a  junior  mortgage  is  as- 
signed, and  the  assignment  is  not  made  of  record,  a  fore- 
closure of  the  senior  mortgage,  to  which  the  junior  mort- 
gagee is  made  a  party,  is  binding  upon  the  assignee  of 
such  junior  mortgage,  and  he  can  only  make  statutory 
redemption,  although  not  made  a  party,  when  the  fact  of 
his  interest  is  not  known  to  the  party  foreclosing;  and 
the  fact  that  such  assignee,  pending  foreclosure  of  a 
senior  mortgage,  brings  an  action  upon  such  junior  mort- 
gage, will  not  make  it  incumbent  upon  the  party  fore- 
closing the  senior  mortgage  to  bring  such  assignee  into 
court  as  a  party  to  such  foreclosure.28  The  statutory 
redemption  provided  for  does  not  take  away  the  equit- 
able right  of  redemption,  and  it  will  be  enforced  in  a 
court  of  chancery  in  a  proper  case  until  it  is  taken  away 
by  express  legislative  enactment.  So  it  is  held  that  a 
junior  lien-holder,  not  having  been  made  a  part}"  to  the 
foreclosure  of  a  prior  lien,  had  an  equitable  right  to  re- 
deem by  action,  instead  of  taking  advantage  of  the  pro- 
visions of  the  statute.29  The  holder  of  a  junior  judg- 
ment has  no  right  to  redeem  from  a  sale  under  a  fore- 
closure of  a  senior  mortgage  after  the  statutory  time  for 
redemption  has  expired,  even  though  he  is  not  made  a 
party  to  the  foreclosure,  if  his  judgment  is  not  indexed 
at  the  time  of  the  foreclosure,  as  third  persons  are  not 
charged  with  constructive  notice  of  a  judgment  unless 
it  is  correctly  indexed.30  Reference  is  made  to  the  cases 
cited  below  for  a  further  discussion  as  to  the  rights  of 
redemption  and  the  effect  of  redemption.31  Under  the 
code  of  1851,  the  sale  of  mortgaged  property  by  fore- 
closure barred  and  cut  off  all  equity  of  redemption.  Ke- 

2"  Esher    v.     Simmons,     54-269;  mon,   19-56;    Newcomb  v.   Dewey, 

Todd  v.  Davey,  60-532;    Harms  v.  27-381;  Bunce  v.  West,  62-80. 

Palmer,  61-483.  so  sterling  Mfg.  v.  Early,  69r94; 

23  Reed  v.  Wilson,  64-13.  see     Cummings    v.     Long,     16-41; 

29  Newell     v.     Pennick,     62-123;  Thomas  v.  Desney,  57-58. 

Gower     v.      Winchester,      33-303:  si  Hutchinson   v.   Wells,   67-430; 

Knowles  v.  Rablin,  20-101;  Spurgin  Iowa  Loan  &  Trust  Co.  v.  King,  66- 

v.  Adamson,  62-661;   Iowa  County  322;  Dickerman  v.  Lust,  66-444. 
v.  Beeson,  55-262;  Johnson  v.  Har- 


§  11GO.]  HEAL    ESTATE    MOKTGAGES.  395 

demption  could  only  be  made  before  the  sale.32  The  sub- 
ject of  redemption  will  be  found  fully  discussed  in  the 
chapter  on  that  subject.33 

§  1160.  Of  priority  of  liens — Intervening  equities 
—Indexing,  etc. — The  law  applicable  to  cases  of  inter- 
vening equities  depending  on  particular  facts  is  dis- 
cussed in  the  cases  below  cited.34  One  who  claims  a  title 
or  right  in  real  estate  under  another  must  be  presumed 
to  have  knowledge  of  the  recitals  in  a  conveyance  to  his 
immediate  grantor.35  And  one  who  takes  a  mortgage 
from  another  whose  deed  recites  the  existence  of  a  prior 
mortgage  though  it  is  not  indexed  on  the  record,  yet 
his  lien  will  be  subject  thereto.36  A  promissory  note 
executed  by  a  father  to  his  daughter  for  services  in  pur- 
suance of  an  agreement  is  founded  on  a  good  considera- 
tion, and  a  mortgage  given  to  secure  it  is  not  fraudulent 
as  to  his  creditors.37  When  a  wife  who  had  joined  with 
her  husband  in  a  mortgage  on  their  homestead  to  secure 
his  debt  had  entered  into  a  written  contract  with  the 
mortgagee  for  the  purchase  of  the  debt  at  a  future  time 
at  a  discount,  but  the  mortgagee  in  the  meantime 
brought  an  action  to  foreclose  his  mortgage,  it  was  held 
he  was  entitled  to  recover  as  against  a  junior  incum- 
brancer  the  full  amount  of  the  note  and  interest,  and  not 
simply  the  amount  which  the  wife  would  at  that  time 
have  been  obliged  to  pay  him  for  the  debt  under  her 
contract.38  One  dealing  with  a  mortgagee  without 
notice  is  protected.39  When  "P."  conveyed  the  "property 
in  question  to  "L."  and  at  the  same  time  "L."  entered 
into  a  written  agreement  that  the  contract  and  convey  - 

32  Kramer  v.  Rebman,  9-114.  White  v.   Foster,  102   Mass.,   375: 

33  Chapter  on  Redemption.  Oliver  v.  Piatt,  3  How.,  332;  Clark 
3*Crowley    v.     Harader,     69-83;      v.  Ballard,  66-747. 

Weidner     v.      Thompson,      69-36;  ^  JEtna  Life  Ins.  Co.  v.  Bishop, 

Van     Gorder    v.     Lundy,     66-448;  69-645;    Council  Bluffs  v.   Billups, 

Davis  v.  Lutkiewitz,  72-254;  Math-  67-674. 

er  v.  Jenswold.  72-550.  37  Chadwick    v.    Devore,    69-637; 

ss  State  v.  Shaw,  28-67;  Hall  v.  see  Scully  v.  Scully,  28-548;  Smith 

Orvis,  35-366;  Baker  v.  Mather,  25  v.  Johnson,  45-308;   Allen  v.  Bry- 

Mfch.,  51;  Reeder  v.  Barr,  4  Ohio,  son,  67-591. 

446;  Bell  v.  Twilight,  22  N.  H.,  500;  ss  Knox  v.  Moser,  69-341. 

Brush    v.    Ware,    15    Peters,   93;  so  Parmenter  v.  Oakley,  69-388. 


396  REAL    ESTATE    MORTGAGES.  [§  1160. 

ance  might  be  rescinded  at  "P.'s"  election  on  certain 
conditions,  which  agreement  was  recorded  and  in- 
dexed in  the  name  of  "L."  as  grantor  and  of 
"P."  as  grantee,  held,  that  one  accepting  a  mort- 
gage from  "L."  on  the  property  was  charged  with  con- 
structive notice  of  "P's"  rights.40  Where  the  mort- 
gagor's title  was  canceled  at  the  suit  of  his  grantor,  upon 
condition  that  the  grantor  pay  him  a  certain  sum  of 
money,  and  the  mortgagee  was  also  before  the  court  de- 
fending his  mortgage,  it  was  held  the  mortgage  should 
have  been  held  good  for  the  amount  of  such  payment, 
and  the  court  should  have  directed  the  money  to  be  paid 
to  the  mortgagee.41  In  Central  Trust  Company  v.  Sloan, 
65  Iowa,  655,  it  is  held  that  a  mortgagee  is  bound  by  a 
decree  to  know  that  a  mortgage  was  an  inferior  lien. 
Where  one  attempted  to  execute  a  mortgage  on  certain 
lands,  but  the  same  wrere  not  correctly  described,  and 
after  the  lapse  of  three  years  the  mistake  was  discovered, 
and  a  new  mortgage  made  to  correct  the  error,  but  in  the 
meantime  the  mortgagor  had  made  a  second  mortgage 
to  another  party,  which  was  recorded  before  the  correct- 
ed mortgage,  but  the  second  mortgage  contained  an  ex- 
ception in  these  words,  "except  one  mortgage  for  $1,200," 
and  there  was  no  prior  mortgage  on  the  land,  the  excep- 
tion was  held  to  give  notice  to  the  mortgagee  therein, 
and  to  put  him  on  inquiry  as  to  the  holder  of  such  mort- 
gage.42 

As  to  questions  of  priority  depending  on  particular 
facts  and  the  application  of  the  proceeds  of  sale  in  cer- 
tain cases,  the  reader  is  referred  to  cases  cited  below.43 
One  who  acquires  an  attachment  or  a  judgment  lien  on 
property  intended  to  be  covered  by  a  prior  mortgage, 
but  which  by  reason  of  a  mistake  in  description  is  not 

« Paige  v.  Lindsey,  69-593.  man  v.    Lust,   66-444;    Hoskins   v. 

41  Same  as  No.  40.  Carter,      66-638;      Hutchinson     v. 

42  Clark  v.  Bullard,  66-747;  Coun-  Wells,  67-430;  Kellog  v.  Gutchens, 
cil  Bluffs  v.  Billups,  67-674.  62-502;    Koevenig  v.    Schmitz,    73- 

« Hoffman  v.    Wilhelm,   69-510;       175;    see  Huff  v.   Farwell.   67-298; 
Packard  v.  Kingman,  11-219;  Iowa      Leavett  v.  Reynolds,  79-348. 
College  v.  Fenno,  67-244;    Dicker- 


§  1161.]  REAL    ESTATE    MORTGAGES.  397 

included  therein,  such  mistake  being  known  to  such 
lien-holder,  his  claim  is  subject  to  the  equitable  rights 
of  the  mortgagee.44  And  such  mistake  may  be  corrected 
in  equity  as  against  a  subsequent  mortgagee  with 
notice.45  Where  the  indebtedness  secured  by  a  mort- 
gage is  barred  by  the  statute  of  limitations,  an  admis- 
sion of  such  indebtedness,  sufficient  to  remove  the  bar  of 
the  statute,  restores  the  lien  for  the  indebtedness,  even 
as  against  a  junior  lien.46  A  provision  in  a  mortgage 
that  upon  default  in  the  payment  of  installments  of  inter- 
est or  taxes  the  whole  indebtedness  shall  become  due 
is  for  the  benefit  of  the  mortgagee  at  his  election,  and 
such  default  will  not  set  the  statute  of  limitations  run- 
ning against  the  indebtedness  in  the  absence  of  an  elec- 
tion on  the  part  of  the  mortgagee  to  take  advantage  of 
such  provision.47 

§  1161.  Of  release  and  merger. — If  the  release  of  a 
mortgage  is  secured  by  the  fraud  of  the  mortgagor,  sub- 
sequent attaching  creditors  obtain  no  better  right  than 
the  mortgagor  has  in  the  mortgaged  property.48  Where 
a  mortgagee  purchases  the  fee-simple  title  to  the  mort- 
gaged premises,  no  merger  of  the  mortgage  will  occur, 
when  the  intention  of  the  mortgagee  is  otherwise,  and 
the  merger  is  against  his  interest.49  And  in  the  absence 
of  evidence  of  intention,  it  will  be  presumed  to  accord 
with  his  interest.50  A  foreign  administrator,  executor 
or  guardian,  being  qualified  as  provided  by  law,  may  re- 
lease and  discharge  mortgages.51  The  rendition  of  a 

«  Duncan  v.  Miller,  64-223.  kin  v.  Wilsey,  17-463;   Lins'cott  v. 

45  Peters  v.  Ham,  62-656.  Lamart,  46-312;    Bowling  v.  Cook. 

46Mahon  v.  Cooley,  36-479;    see  39-200;  Johnson  v.  Walter,  60-315; 

Kerndt  v.  Porterfield,  56-412.  Byington     v.     Fountain,     61-512; 

47  Watts  v.  Creighton,  85-154.  Hervey  v.   Savery,    48-313;     Dela- 

48  Hoffman  v.  Wilhelm,   68-510;  ware  R.  C.  Co.  v.  D.  &  St.  P.  R.  Co., 
Vannice  v.  Bergen,  16-555;  Reed  v.  46-406;  First  Nat'l  Bk.  v.  Elmore, 
King,  23-500;  see  Ellis  v.  Lindley,  52-541;    Fuller   v.    Lamar,    53-477; 
37-334.  Pike  v.  Gleason,  60-150;  Stimson  v. 

•49  Smith    v.    Swan,   69-412;    Pat-  Pease,  53-572. 

terson  v.  Mills,  69-755;  Simpson  v.  so  Patterson     v.     Mills,     69-755; 

Pease,     53-572;      Wickersham     v.  Woodward  v.  Davis,  53-694;   Nat'l 

Reeves,  1-413;   Lyon  v.  Mcllvaine,  Bk.  v.  Elmore,  52-541. 

24-9;   Woodward  v.  Davis,  53-694;  01  Code,  Sec.  3308. 
Wilhelmi  v.  Leonard,  13-330;  Ran- 


398 


EEAL    ESTATE    MORTGAGES. 


[§  1161. 


judgment  or  decree  of  foreclosure,  while  it  merges  the 
debt  into  a  judgment,  does  not  affect  the  mortgage  lien; 
it  continues  to  exist  until  tlie  debt  is  paid  or  dis- 
charged.52 

Generally,  it  may  be  said  that  nothing  but  actual  pay- 
ment or  express  release  will  discharge  the  mortgage 
debt,  nor  will  the  lien  be  affected  by  taking  new  notes 
and  mortgage  for  the  debt.53 


52  Hendershott   v.  Ping,  24-134; 
Shearer  v.  Mills,  35-499. 

53  Packard  v.  Kingman,  11-219; 
Chase  v.  Abbott,  20-154;   Swan  v. 
Yaple,  35-248;   Thorpe  v.  Burbon, 


45-192;  Port  v.  Robins,  35-208; 
Sloan  v.  Rice,  41-465;  Heively  v. 
Matterson,  54-505;  Washington  Co. 
v.  Slaughter,  54-265;  Wilhelmi  v. 
Leonard,  13-330. 


CHAPTER  LXXI. 

OF  MOTIONS  AND  ORDERS. 

oec.  1162.  Of  the  form  and  requisites  of  motions,  etc. 

1163.  Of  notice  of  motions. 

1164.  Of  service  and  return  of  notice. 

1165.  Of  the  hearing. 

1166.  Of  orders. 

Section  1163.  Of  the  form  and  requisites  of  mo- 
tions, etc. — A  motion  is  a  written  application  for  an 
order,  addressed  to  the  court,  or  to  a  judge  in  vacation, 
by  any  party  to  an  action  or  proceeding,  or  by  any  one 
interested  therein.1  Several  objects  may  be  included  in 
the  same  motion,  if  they  all  grow  out  of,  or  are  connected 
with  the  action  or  proceeding  in  which  it  is  made.2  A 
decree  or  judgment  is  not  an  order  within  the  meaning 
of  that  word  as  used  in  the  statute.3  Nor  is  a  motion  to 
instruct  a  jury  to  render  a  verdict  such  a  motion  as  must 
be  in  writing.4  A  motion  must  be  entitled  like  plead- 
ings, and  should  include  all  the  relief  the  party  making  it 
is  entitled  to  at  the  time,  and  must  specify,  as  particu- 
larly as  may  be,  the  grounds  on  which  it  is  based.6  A 
motion  after  a  motion,  to  the  same  pleading,  is  not  per- 
missible.6 A  paper  denominated  "synopsis  of  petition," 
but  which  lacks  the  essential  requisites  of  a  petition, 
may  be  stricken  out  on  motion.7  So,  it  is  not  error  to 
strike  an  amended  answer,  which  is  filed  to  conform  the 

1  Code,  Sec.  3831;  Wood  v.  Bai-         *  Young  v.  Burlington  Wire  Mat- 
ley,  12-46;  Hall  v.  Grouse,  14-487;      tress  Co.,  79-415. 

see  Palmer  v.  Jones,  49-405;  Young  $  Wood  v.  Bailey,  12-46;  Hall  v. 

v.  Burlington  Wire  Mattress  Co.,  Grouse,  14-487. 

79-415.  e  Riddle  v.  Backus,  36-430. 

2  Code,  Sec.  3832.  7  Garretson  v.  Hays,  70-19. 
s  Code,    Sec.    3831;    Wagner    v. 

Tice,  36-599. 


400  MOTIONS    AXD    ORDERS.  [§  1163. 

pleadings  to  the  proof,  when  the    same    evidence    was 
admissible  under  the  original  answer.8 
The  motion  may  be  in  the  following  form: 

FORM  OF  A  MOTION. 
Title,     ) 
Venue,    j 

The  plaintiff  (or  defendant,  as  the  case  may  be)  moves  the  court 
(here  specify  all  the  relief  the  party  making  the  motion  is  entitled  to), 
upon  the  following  grounds: 

1.  That,  etc.  (here  state  one  ground  of  the  motion). 

2.  That,  etc.  (here  state  another  ground,  and  follow  in  the  same 
manner  until  all  have* been  set  out). 

,  attorney  for  plaintiff  (or  defendant). 

§  1163.  Of  notice  of  motions. — A  party  who  has  ap- 
peared in  an  action,  or  who  has  been  served  with  an 
original  notice  as  provided  by  law,  must  take  notice  of 
all  motions  filed  during  term  time,  upon  the  same  being 
filed  by  the  clerk,  and  entered  in  the  appearance  docket.9 
And  all  motions  filed  in  vacation  must  be  entered  on 
such  docket,  and  served  on  the  opposite  party,  or  his  at- 
torney.10 A  motion  for  a  change  of  venue  made  in  va- 
cation can  not  be  heard  without  notice  be  given  to  the 
adverse  party.11 

After  judgment  the  defendant  is  not  required  to  take 
notice  of  subsequent  proceedings,12  and  is  entitled  to  no- 
tice of  a  motion  to  set  aside  a  judgment  rendered  at  a 
prior  term.13  As  to  when  a  party  may  not  object  to  the 
want  of  service  of  notice  of  a  motion.14 

When  notice  of  a  motion  is  required  to  be  served  it 
must  state  the  names  of  the  parties  to  the  action  or  pro- 
ceeding in  which  it  is  made,  the  name  of  the  court  or 
judge  before  whom  it  is  to  be  heard,  and  the  place  where, 
and  the  day  on  which  such  hearing  is  to  take  place;  and 
if  affidavits  are  to  be  used  on  the  hearing,  the  notice 
must  be  accompanied  with  copies  thereof,  and  must  be 

s  Hunt  v.  Higman,  70-406.  12  Adair      v.      Wright,      16-385; 

9  Code,    Sec.    3834;     Wagner    v.      Wright  v.  LeClaire,  3-221. 
Tice,  36-599.  is  Keeney  v.  Lyon,  21-277. 

10  Code,  Sec.  3834.  i*  Rivers  v.  Olmsted,  66-186;  Bill- 

11  Preston     v.     Winter,     20-265;       ings  v.  Kothe,  49-34. 
Loomis  v.  McKenzie,  31-425. 


§  1163.]  MOTIONS   AND    ORDERS.  401 

served  such  length  of  time  before  the  hearing,  as  the 
court  or  judge  deems  reasonable.15  Such  notice  may  be 
in  the  following  form: 

FORM  OF  NOTICE  OF  MOTION. 
Title,    ) 
Venue.  ) 

To defendant,  or  to ,  his  attorney: 

You  are  hereby  notified  that  a  motion,  a  copy  of  which  is  attached 
hereto,  will  be  brought  on  by  plaintiff  for  hearing  before  the  district 

court  of county,  Iowa,  on  the day  of ,  18 — ,  (or  before 

the  Honorable ,  judge  of  said  court,  on  the  day  of  , 

18 — ,  at o'clock  —  m.,  at  the  chambers  of  said  judge  in  the  city  of 

— ,  in county,  Iowa). 

And  that  upon  the  hearing  of  said  motion  the  plaintiff  will  use 
affidavits  in  support  thereof,  copies  of  which  are  attached  hereto,  and 
you  can  attend  at  said  time  and  place  if  you  so  desire. 

,  attorney  for  plaintiff. 

(There  must  be  attached  to  the  notice  a  copy  of  the  motion  and  affi- 
davits.) 

§  1164.    Of   service    and    return    of    notice. — The 

notice  and  copy  of  motion  referred  to  in  this  chapter  may 
be  served  by  any  one  authorized  to  serve  an  original 
notice.16  Service  must  be  made  on  each  of  the  parties 
adverse  to  such  motion,  if  more  than  one,  or  on  an  at- 
torney of  record  of  such  party  or  parties.17  The  service 
may  be  personal  on  the  party  or  his  attorney,  or  may  be 
made  in  the  same  manner  as  is  provided  for  the  service 
of  the  original  notice  in  civil  actions,  or  it  may  be  served 
on  the  attorney  by  being  left  at  his  office  with  -any  per- 
son having  the  charge  thereof.18  When  an  officer  who  is 
authorized  to  serve  the  notice  and  copy  of  the  motion 
receives  the  same  for  service,  it  is  his  duty  to  serve  the 
same  at  once  and  make  prompt  return  thereof  to  the 
party  who  gave  it  to  him,  and  a  failure  to  do  so  will  be 
punished  as  a  disobedience  of  the  process  of  the  court.19 
The  return  or  proof  of  service  must  state  the  manner  in 
which  such  service  was  made.20  If  the  party  to  be 

IB  Code,  Sec.  3835.  is  Code,  Sec.  3838 

is  Code,  Sec.  3836.  is  Code,  Sec.  3839. 

IT  Code,  Sec.  3837.  20  Code,  Sec.  3840. 
Vol.  11-26 


402  MOTIONS   AND    ORDERS.  [§§  1165,  1166. 

served  has  no  known  place  of  abode  in  this  State  and  no 
attorney  in  the  county  where  the  action  is  pending,  or  in 
a  case  where  the  parties,  plaintiff  or  defendant,  are 
numerous,  the  court  or  judge  may  direct  the  mode  of 
serving  notice  and  copies,  and  on  whom  they  shall  be 
served.21 

§  1165.  Of  the  hearing. — If  the  adverse  party  con- 
sents to  the  granting  of  a  motion,  ordinarily  it  will  be 
granted  as  a  matter  of  course;  but  if  he  objects  to  the 
granting  of  the  relief  asked  in  the  motion  he  must  take 
advantage  of  any  defects  in  plaintiff's  proceedings  or 
they  will  be  waived.  Testimony  to  sustain  or  resist  a 
motion  on  the  hearing  may  be  in  the  form  of  affidavits, 
or  in  such  other  form  as  the  parties  may  agree  upon,  or 
the  court  or  judge  direct;  and  if  by  affidavit  the  person 
making  the  same  may  be  required  to  appear  by  the  court 
or  judge,  and  submit  to  a  cross-examination.  The  hear- 
ing will  occur  at  the  time  specified  in  the  notice,  if  due 
time  has  been  given,  unless  for  sufficient  cause  the  court 
or  judge  adjourn  it  until  some  future  time.22  If  no  rul- 
ing appears  to  have  been  made  on  a  motion,  the  pre- 
sumption is  that  the  m  Jon  was  waived.23  A  motion 
once  passed  upon  will  not  be  reheard  at  the  instance  of 
the  unsuccessful  party  until  the  ruling  has  been  set 
aside  on  his  motion,  and  on  notice  to  the  opposite 
party.24  In  determining  questions  relating  to  costs  and 
as  to  who  shall  pay  them,  the  court  may  receive  affida- 
vits and  decide  the  matter  thereon,  or  it  may  order  the 
deponents  to  be  brought  before  it  and  examined.25 
Issues  of  fact  may  arise  upon  motion.26 

§  1166.  Of  orders. — Every  direction  of  a  court  or 
judge,  made  or  entered  in  writing,  and  not  included  in  a 
judgment,  is  an  order.27  But  an  order  is  not  a  judgment 
in  such  sense  that  the  statute  of  limitations  applies  to 

21  Code,  Sec.  3841.  25  Packer  v.   Packer,  24-20. 

22  Code,  Sees.  3833,  4678.  20  Leare  v.  Franklin,  84-413. 
•     23  Cook  v.  Smith,  50-700.  27  Code,  Sec.  3842. 

a*  Townsend  v.  Wisner,  62-672. 


£1166.]  MOTIONS   AND    ORDEKS.  403 

it.28  A  final  decree  in  equity  is  not  an  order,  but  a  judg- 
ment, within  the  meaning  of  section  3842,  of  the  code.29 
The  decision  of  a  motion  is  an  order,  and  an  order  made 
in  vacation  on  a  hearing  of  a  motion  must  be  filed  with, 
and  entered  by  the  clerk  on  the  journal  of  the  court,  in 
the  same  manner  as  orders  made  in  term  time.30  For 
good  cause  shown,  a  judge's  order  may  issue  in  vacation 
directing  any  of  the  officers  of  the  court  in  relation  to 
the  discharge  of  their  duties.31  Thus  the  judge  in  va- 
cation may  direct  the  sheriff  to  publish  a  notice  of  sale 
in  a  manner  prescribed  by  law,  as  declared  by  the 
judge.32  And  an  order  may  be  issued,  directing  the 
clerk  as  to  his  duty.33  But  such  orders  remain  in  force 
only  during  the  vacation  in  which  they  are  granted,  and 
for  the  first  two  days  of  the  succeeding  term.34  But  this 
provision  does  not  apply  to  a  temporary  injunction, 
granted  in  vacation.35  Nor  to  an  order  in  a  proceeding 
by  habeas  corpus.36  If,  for  any  reason,  it  is  necessary 
for  the  order  to  be  kept  in  force  after  the  second  day  of 
the  term,  application  for  that  purpose  must  be  made  be- 
fore such  time  expires.  The  judge  granting  the  order 
heretofore  spoken  of,  may  require  the  filing  of  a  bond  as 
in  cases  of  injunctions,  unless,  from  the  nature  of  the 
case,  such  a  requirement  would  be  clearly  unnecessary 
and  improper.37 

28  Smith     v.     Shawhan,     37-533,         22  Harriman  v.  Moore,  49-171. 
and  cases  cited.  ss  Maynes  v.  Brockway,  55-457. 

29  Wagner  v.  Tice,  36-599.  34  Code,  Sec.  3844. 

so  Code,   Sec.   3846.  S5  Curtis  v.  Crane,  38-459. 

si  Code,     Sec.     3843;     Pickel     v.          so  Shaw  v.  McHenry,  52-182. 
Owen,  66-485.  ST  Code,  Sec.  3845. 


CHAPTER  LXXIL 


OF  NUISANCE. 

Sec.  1167.  Definition  of  nuisance. 

1168.  Of  the  action,  and  when  it  will  lie. 

1169.  When  the  action  will  not  lie. 

1170.  Of  the  petition. 

1171.  Of  the  abatement  of  nuisances  by  parties  injured  thereby. 

1172.  Power  of  municipal  corporations  to  determine  what  consti- 

tutes a  nuisance. 

1173.  Of  practice. 

1174.  Of  the  order  of  abatement. 

Section  1167.  Definition  of  nuisance. — A  nuisance 
is  defined  by  our  statute  as  being  whatever  is  injurious 
to  health,  or  indecent  or  offensive  to  the  senses,  or  an  ob- 
struction to  the  free  use  of  property,  so  as  essentially  to 
interfere  with  the  comfortable  enjoyment  of  life  or  prop- 
erty.1 

§  1168.  Of  the  action  and  when  it  will  lie. — It  is 
a  civil  action  to  be  prosecuted  by  ordinary  proceedings, 
by  any  person  injured  thereby,  and  in  the  same  action 
the  nuisance  may  be  enjoined  or  abated,  and  damages 
also  recovered  therefor.  It  will  lie  to  abate  obstruction 

i  Code,  Sec.  4302;  Ewell  v. Green-      Co.,  63-680;   Shiras  v.  Olinger,  50- 


wood,  26-377;  Morrison  v.  Mar- 
quardt,  24-35;  Mofflt  v.  Brewer,  1 
G.  Greene,  348;  McCordv.High,  24- 
836;  Everett  v.  Council  Bluffs,  46- 
66;  Park  v.  The  C.  &  S.  W.  R.  Co., 
43-636;  Finley  v.  Hershey,  41-389; 
State  v.  Raster,  35-221;  Cain  v.  The 
C.,  R.  I.  &  P.  R.  Co.,  54-255;  see 
also  Cadle  v.  The  Muscatine  W.  R. 
Co.,  44-11;  Firth  v.  The  City  of 
Dubuque,  45-406;  Bushnell  v.  Rob- 
eson,  62-540;  Richards  v.  Holt,  61- 
529;  Faucher  v.  Grass,  60-505; 
Daniels  v.  Keokuk  Water  Works, 
61-549;  Fuller  v.  C.,  R.  I.  &  P.  R. 
Co.,  61-125;  Miller  v.  K.  &  D.  M.  R. 


571;  Shively  v.  C.,  R.  I.  F.  &  N.  R. 
Co.,  74-169;  Moore  v.  C.,  B.  &  Q. 
R.  Co.,  75-263;  Harley  v.  Merrill 
Brick  Co.,  83-73;  Randolf  v.  Bloom- 
field,  77-50;  Ferguson  v.  Firmenich 
Mfg.  Co.,  77-576;  Churchill  v.  Bur- 
lington Water  Co.,  62  N.  W.,  646; 
Miller  v.  Webster  City,  62  N.  W., 
648;  Platt  v.  C.,  B.  &  Q.  R.  Co.,  74- 
127;  Ottumwa  v.  Chinn,  75-405; 
Innis  v.  C.,  R.  I.  F.  &  N.  W.  R.  Co., 
76-165;  Kallsen  v.  Wilson,  80-229; 
Miller  v.  Schenck,  78-372;  Trulock 
v.  Merte,  72-510;  Millhiser  v.  Will- 
ard,  65  N.  W..  325;  Downing  v. 
Oskaloosa,  86-352. 


404 


NUISANCE.  405 

of  a  public  highway.2  It  will  lie  in  favor  of  any  person 
whose  property  is  injuriously  affected  and  whose  per- 
sonal enjoyment  is  lessened  by  the  erection  of  a  nui- 
sance. It  will  lie  at  the  instance  of  one  who  is  damaged 
by  the  obstruction  of  a  highway  leading  to  his  premises.3 
It  will  lie  to  prevent  the  obstruction  of  a  stream  by  rea- 
son of  which  lands  are  inundated.4  It  lies  for  the  pollu- 
tion of  a  stream  of  water.5  It  will  lie  at  the  instance  of 
a  property  holder  against  a  railway  company  where  it 
erects  a  side-track  upon  a  street  in  a  city  in  violation  of 
the  city  ordinances,  and  where  the  use  thereof  consti- 
tutes a  nuisance  which  specially  damages  the  complain- 
ant.6 It  will  lie  to  abate  a  slaughter  house.7  It  will  lie 
at  the  instance  of  one  injured  in  the  enjoyment  of  prem- 
ises by  smoke,  but  in  such  a  case  where  the  health  of 
himself  or  family  was  not  affected  the  court  refused  to 
abate  the  nuisance.8  It  will  lie  at  the  instance  of  munic- 
ipal corporations  to  abate  nuisances  within  their  lim- 
its.9 When  a  nuisance  is  of  a  permanent  nature,  all  the 
damages  caused  thereby,  whether  past  or  prospective, 
accrue  at  once  on  its  becoming  a  nuisance  against  the 
one  doing  the  injury  and  not  against  his  grantee.10  Nor 
is  it  necessary  that  the  board  of  health  should  have 
found  a  nuisance  to  be  such  before  an  action  can  be 
maintained.  Feed  lots  and  stock  yards  may  be  a  nui- 
sance.11 A  city  is  not  liable  in  damages  for  nui- 
sance on  account  of  the  condition  of  a  small  stream 
within  its  limits,  which  passes  over  private  property.12 

§  1169.    When  the  action  will  not  lie.— It  will  not 

zEwell  v.  Greenwood,  26-377.  State  v.  Kaster,  35-221;   Wood  on 

s  Park  v.  The  C.  &  S.  W.  R.  Co.,  Nuisances,  Sees.  504,  505. 

43-636.  s  Daniels      v.      Keokuk      Water 

*  Moore  v.  C.,  B.  &  Q.  R.  Co.,  75-  Works,  61-549. 

263.  a  Cole  v.  Kegler,  64-59;    Everett 

s  Ferguson    v.    Firmenich    Mfg.  v.  City  of  Council  Bluffs,  46-66. 

Co.,  77-576.  10  Bizer   v.    Ottumwa   Hydraulic 

e  Cain  v.  The  C.,  R.  I.  &  P.  R.  Co.,  P.  Co.,  70-145. 

54-255;  see  also  Cadle  v.  The  Mus-  n  Baker    v.     Bohannan,     69-60; 

oatine  W.  R.  Co.,  44-11;    Firth  v.  Shively  v.  C.,  R.  I.  F.  &  N.  R.  Co., 

City  of  Dubuque,  45-406.  74-169. 

T  Bushnell    v.    Robeson,    62-540;  ™  Loughran  v.  Des  Moines    72- 

382. 


406  NUISANCE.  [§  1170. 

lie  to  abate  trees  growing  in  a  highway  where  they  do 
not  obstruct  or  interefere  with  public  travel.13  It  will 
not  lie  in  favor  of  an  individual  unless  he  suffers  special 
damage  therefrom.14  It  will  not  lie  in  favor  of  a  party 
who  is  maintaining  an  equally  offensive  nuisance  on  his 
premises.15  But  it  can  not  be  maintained  where  one  im- 
proves his  lot  so  as  to  cast  rainwater  falling  thereon,  on 
a  street  or  alley  at  an  established  grade,  from  whence  it 
flows  on  the  land  of  another  which  is  below  grade.16  It 
will  not  lie  against  a  municipal  corporation  for  doing  an 
authorized  act  within  the  scope  of  the  power  granted.17 
§  1170.  Of  the  petition.— As  has  been  seen,  this 
action  is  prosecuted  by  ordinary  proceedings  and  the 
petition  should  state  the  facts  constituting  the  nuisance, 
and  if  it  is  desired  to  have  an  injunction  issued  in  the 
same  action,  the  proper  allegation  therefor  should  be  set 
forth.  The  petition  may  be  in  the  following  form: 

FORM    OF    PETITION    FOR    DAMAGES    FOR    OBSTRUCTING    A 

STREET. 
Title, 
Venue. 

The  plaintiff  states:     That  at  and  before  the  time  of  committing  of 
the  injury  hereinafter  mentioned,  there  was,  and  ever  since  has  been, 
a  certain  public  highway  (or  street,  if  in  a  town  or  city),  called  — 
street,  for  the  free  passage  of  all  persons  on  foot,  and  with  their  teams, 
horses  and  carriages  at  all  times,  and  that  the  said  defendant,  well 

knowing  the  premises  heretofore,  and  on  the day  of ,  18 — , 

wrongfully  caused  to  be  put  and  placed  divers  large  quantities  of  dirt, 
rubbish,  stones  and  other  materials  (the  obstruction  should  be  clearly 
stated),  in  said  public  highway  (or  street),  whereby  the  plaintiff  law- 
fully passing  in  and  along  said  highway  (or  street),  in  a  certain  carriage 
drawn  by  horses,  was  then  and  there,  by  reason  of  said  rubbish  and  ma- 
terial so  wrongfully  placed  in  said  highway  (or  street),  with  great  force 
and  violence,  overturned,  without  the  fault  or  negligence  of  the  plain- 
tiff, and  his  said  wagon  was  broken  and  greatly  injured,  and  he  was 
seriously  injured  in  and  about  his  person,  and  especially  his  left  leg 
(state  any  special  damage  there  may  have  been),  whereby  the  said 

is  Everett  v.  The  City  of  Coun-  is  Cassady   v.   Cavenor,    37-300; 

cil  Bluffs,  46-66;   see  Bills  v.  Bel-  see  Randolph  v.  Bloomfield,  77-50. 

knap,  36-583;  Patterson  v.  Vail,  43-  i«  Philips  v.  Waterhouse,  69-199. 

142.  IT  Miller  v.  Webster  City,  62  N. 

i*  Park   v.   The   C.    &  S.   W.   R.  W.,  648. 
Co.,  43-636;   see  Harley  v.  Merrill 
Brick  Co.,  83-73. 


§  1171.]  NUISANCE.  407 

plaintiff  was  put  to  great  expense  in  curing  his  said  leg,  as  well  as  in 
repairing  his  said  wagon,  to  wit,  the  sum  of  —  —  dollars,  and  was  un- 
able to  attend  to  his  usual  business  for  the  space  of months,  and 

to  the  damage  of  the  plaintiff  in  dollars,  no  part  of  which  has 

been  paid.    Wherefore,  he  prays  judgment  against  the  said  defendant 

for  the  said  sum  of and  costs. 

,  attorney  for  plaintiff. 

(Where  the  petition  asks  for  an  injunction  it  must  be  sworn  to, 
otherwise  it  need  not  be.) 

FORM  OF  PETITION  FOR  ABATEMENT  OF  NUISANCE. 

Title, 
Venue. 

The  plaintiff  states  that  he  is  and  at  all  times  hereinafter  mentioned 
was  the  owner  in  fee  of  (here  insert  description  of  property),  which 
adjoins  the  property  of  the  defendant  hereinafter  described;  that  on  the 

day  of  ,  18 — ,  the  defendant  erected  upon  (here  describe 

real  estate),  a  slaughter  house,  and  cattle  pens,  and  furnaces,  and  vats 
for  making  lard  and  tallow,  and  thereafter  kept  in  his  said  pens  and 
slaughtered  in  the  said  slaughter  house  large  numbers  of  cattle  and 
hogs,  and  made  thereat  tallow  and  lard,  and  thereby  caused  noxious 
and  offensive  smells  and  loud  and  offensive  noises,  and  tainted  and 
corrupted  the  atmosphere  so  as  to  render  the  dwelling  house  of  the 
plaintiff,  situated  on  the  land  above  described,  unfit  for  habitation;  the 
plaintiff  was  compelled  to  remove  therefrom  and  abandon  the  same;  he 
was  thereby  prevented  from  renting  or  otherwise  receiving  any  income 
therefrom  (if  other  special  damage  state  it),  to  the  damage  of  the 
plaintiff  in  the  sum  of dollars,  no  part  of  which  has  been  paid. 

Wherefore  the  plaintiff  demands  judgment  against  the  defendant, 
that  he  be  restrained  by  injunction  from  maintaining  said  building  as  a 
slaughter  house  or  otherwise  to  the  nuisance  of  the  plaintiff,  or  per- 
mitting it  to  be  so  used,  and  that  the  plaintiff  recover  from  the  defendant 

dollars,  damages,  and  costs  of  this  action. 

,  attorney,  for  plaintiff. 

(Where  a  petition  as  above  asks  for  an  injunction  it  must  be  veri- 
fied.) 

While  the  statute,  as  we  have  seen,  provides  that  an 
action  for  damages  caused  by  a  nuisance  and  for  its 
abatement  may  be  by  action  of  law,  yet  it  is  held  that 
such  statute  did  not  take  away  the  equitable  remedy 
which  still  exists.18 

§  1171.  Of  the  abatement  of  nuisances  by  parties 
injured  thereby. — While  our  statute  provides  means 

i»Bushnel   v.    Robeson,    62-540;     Gribben  v.  Hansen,   69-256;    Mill- 
hiser  v.  Willard,  65  N.  W.,  325. 


408  NUISANCE.  [§§  1172,  1173. 

for  the  abatement  of  nuisances,  and  the  recovery  of  dam- 
ages for  injuries  sustained  from  their  existence,  yet  the 
law  seems  to  be  well  settled  in  this  State  that  a  party 
may  with  his  own  hand  abate  that  which  to  him  is  a 
nuisance,  but  he  can  not  needlessly  destroy  the  property, 
and  if  he  do  more  than  is  necessary  to  the  proper  abate- 
ment of  such  nuisance,  if  one  exists,  and  an  injury  there- 
by results  to  the  other  party,  he  will  be  liable  therefor.19 

Where  water  flowing  through  the  premises  of  one  was 
diverted  from  its  natural  course  by  an  artificial  channel 
made  by  a  road  supervisor  in  the  construction  of  a  high- 
way over  the  stream,  the  plaintiff  could  dam  up  the  arti- 
ficial channel  and  thus  restore  the  natural  flow  of  the 
water  over  his  premises,20  but  in  abating  a  nuisance 
caused  by  a  pond  of  water,  the  one  injured  has  not  the 
right  to  fill  up  the  bed  of  the  water,  but  may  remove  the 
cause  which  renders  it  impure,  or  restrain  the  one  whose 
conduct  produced  the  result.21 

§  1172.  Power  of  municipal  corporations  to  de- 
termine what  constitutes  a  nuisance. — A  municipal 
corporation  has  no  power  to  declare  anything  a  nuisance 
which  is  not  such  at  common  law  or  has  not  been  de- 
clared to  be  such  by  statute.22  While  such  corporations 
are  vested  with  power  to  abate  nuisances,23  yet  the 
nuisance  must  in  fact  exist,  and  if  the  thing  abated  be 
not  a  nuisance,  the  decision  or  declaration  of  the  council 
of  such  municipality  does  not  make  it  so,  nor  is  such 
decision  conclusive  upon  the  owner  of  the  property  in 
controversy,  but  he  may  test  the  validity  of  the  action  of 
such  council  by  certiorari,  or  by  action  against  the  mu- 
nicipal corporation  or  its  officers,  for  damages  which  he 
may  sustain.24 

§  1173.     Of  practice. — Damages  for  the  maintenance 

is  Morrison  v.  Marquardt,  24-35;  21  Finley     v.     Hershey,     41-389; 

Mofflt  v.  Brewer,  1  G.  Greene,  348;  State  v.  Raster,  35-221. 

Finley  v.  Hershey,  41-389;  State  v.  22  Everett  v.  The  City  of  Council 

Kaster,   35-221;    McCord   v.   High,  Bluffs,  46-66. 

24-336.  23  Code,  Sec.  696. 

20  McCord  v.  High,  24-336.  24  Cole  v.  Kegler,  64-59,  and  cases 

cited. 


§  1174.]  NUISAXCE.  409 

of  a  nuisance  may  be  recovered  by  individuals  specially 
injured  by  its  erection  or  continuance,  and  it  has  been 
held  that  individual  property  owners  may  maintain  a 
joint  action  for  injunction,  although  owning  separate 
property.25  A  party  can  not  be  enjoined  from  transact- 
ing or  carrying  on  a  business  which  is  not  a  nuisance  per 
se,  but  can,  in  a  proper  case,  be  required  to  transact  his 
business  in  such  a  manner,  that  the  same  will  not 
amount  to  a  nuisance.26  So  a  thing  can  not  be  abated  as 
a  nuisance  unless  it  exists  at  the  time  of  the  trial,27  and 
in  an  action  for  damages  for  a  nuisance,  the  plaintiff  is 
entitled  to  ha,ve  a  jury  assess  the  same,  notwithstanding 
he  may  couple  with  his  claim  for  damages  a  prayer  that 
the  defendants  may  be  enjoined  from  continuing  the 
nuisance.28 

And  where,  in  an  action  to  abate  a  nuisance  consisting 
of  the  obstruction  of  a  highway,  the  jury  found  generally 
for  plaintiff,  but  the  petition  failed  to  locate  the  alleged 
obstruction,  and  to  state  on  whose  land  it  was,  it  was 
held  a  motion  in  arrest  of  judgment  was  properly  sus- 
tained, as  the  court  could  not  make  the  abatement,  ow- 
ing to  the  uncertainty  of  the  location  of  the  obstruction, 
nor  could  it  make  an  order  taxing  the  costs  against  the 
defendant.29  Damages  are  not  in  all  cases  limited  to  the 
rental  value,  but  may  cover  inconveniences  suffered,  dis- 
comfort and  the  like.30 

§  1174.  Of  the  order  of  abatement.  —Where  the 
plaintiff  recovers  in  the  action,  and  in  case  he  asks  for 
an  abatement  of  the  nuisance  without  seeking  to  have 
the  continuance  of  the  nuisance  enjoined  pending  the 
litigation,  an  order  of  abatement  will  be  issued,  and  may 
be  in  the  following  form: 

25  Bushnell   v.   Robeson,    62-540,  29  Sloan  v.  Rebman,  66-81;  Code, 
and  cases  cited.  Sec.  5447. 

26  Richards  v.  Holt,  61-529;  Fau-  so  Ferguson    v.    Firminich    Mfg. 
Cher   v.    Grass,    60-505;    Shiras   v.  Co.,  77-576;  Randolf  v.  Bloomfleld, 
Olinger,  50-571.  77-50;      Churchill     v.     Burlington 

27  Fuller  v.  The  C.,  R.  I.  &  P.  R.  Water  Co.,  62  N.  W.,  646;  Foote  v. 
Co.,  61-125.  Burlington  Water  Co.,  62  N.  W., 

28  Miller  v.  K.  &  D.  M.  R.  Co.,  648. 
63-680. 


410  NUISANCE.  [§  1174. 

FORM  OF  ORDER  FOR  ABATEMENT. 
Title, 
Venue. 

The  State  of  Iowa. 
To  the  sheriff  of county,  Iowa: 

Whereas,  in  the  above  entitled  action,  it  was  found  that  the  defend- 
ant was  maintaining  a  nuisance  on  (here  describe  property  on  which 
nuisance  exists),  by  (here  set  out  what  the  nuisance  consists  of  as  in  the 
petition).  Now,  therefore,  you  are  hereby  commanded  in  the  name  of 
the  State  of  Iowa,  to  forthwith  abate  said  nuisance  by  (here  recite  the 
acts  which  the  officer  is  directed  to  do),  and  make  due  return  hereon  to 
this  court  of  your  doings  in  the  premises. 

In  witness  whereof  I  have  hereto  affixed  my  hand  and  the  seal  of 

said  court  at  (place),  this day  of 18 — . 

[Seal.]  ,  clerk,  etc. 

Nuisances  relating  to  the  sale  of  intoxicating  liquors 
are  treated  of  in  the  chapter  on  injunctions. 


CHAPTER  LXXIIL 

OF  PARTITION. 

Sec.  1175.  Of  voluntary  partition. 

1176.  Of  partition  by  suit. 

1177.  Of  parties  to  the  action. 

1178.  When  partition  is  not  the  proper  remedy. 

1179.  Of  partition  of  water-power,  mills,  machinery,  dams,  etc. 

1180.  Of  the  interest  of  the  widow  and  of  the  homestead. 

1181.  Of  partition  of  land  owned  by  a  firm. 

1182.  Of  notice. 

1183.  Of  the  petition  and  what  it  must  contain. 

1184.  Of  the  answer. 

1185.  Of  minors. 

1186.  Of  disclaimer. 

1187.  Of  practice. 

1188.  Of  incumbrances, 

1189.  Of  decree. 

1190.  Of  the  appointment  of  referees. 

1191.  Of  directions  to  referees. 

1192.  Of  the  qualification  of  referees. 

1193.  When  referees  need  not  be  appointed. 

1194.  Of  duties  of  referees  where  partition  of  the  property  is  made. 

1195.  Of  the  report  of  referees  of  partition. 

1196.  When  the  report  will  be  set  aside. 

1197.  Of  confirmation  of  the  report. 

1198.  Of  bond  of  referees  where  a  sale  is  made. 

1199.  Of  notice  of  sale. 

1200.  Of  the  report  of  sale  by  referees. 

1201.  When  the  sale  may  be  set  aside. 

1202.  Of  confirming  the  sale  and  of  the  conveyance. 

1203.  Effect  of  such  conveyance. 

1204.  Of  investing  proceeds  of  sale. 

1205.  Of  costs  and  attorney's  fees,  etc. 

1206.  Of  appeals. 

1207.  Of  the  record. 

Section  1175.  Of  voluntary  partition. — Voluntary 
partition  may  be  made  by  the  owners  of  an  estate  con- 
veying or  releasing  to  each  other  all  that  part,  which  is 
to  be  held  by  them  in  severalty.  When  all  the  owners 
of  the  real  estate  consent,  and  none  of  them  are  under 

411 


412  PARTITION.  [§§1176,  1177. 

any  legal  disability,  they  may  thus  make  partition 
among  themselves,  and  by  their  own  voluntary  act,  with- 
out invoking  the  aid  of  the  courts.  The  object  of  parti- 
tion is  to  enable  each  party  having  an  interest  in  the 
land  to  obtain  the  title  and  use  for  all  future  time  in 
severalty  of  some  definite  portion  of  the  property  which 
is  owned  in  common.1 

§  1176.  Of  partition  by  suit. — When  there  are 
minor  heirs,  or  other  parties  owning  interests  in  the 
property  sought  to  be  partitioned  who  are  under  legal 
disability,  the  partition  must  be  made  by  an  action  in 
court,  and  it  must  be  so  made  when  the  owners  of  the 
property  can  not  agree  among  themselves  with  refer- 
ence to  its  division,  and  the  intention  is  to  make  a  judg- 
ment in  partition  which  shall  be  final  and  conclusive  on 
all  persons  interested  in  the  property,  or  any  part  of  it.2 
The  action  for  partition  must  be  by  equitable  proceed- 
ings, and  no  joinder  or  counter  claim  of  any  other  kind  is 
allowed  therein  except  as  hereafter  mentioned.3  The  ac- 
tion will  not  lie  to  partition  land  owned  in  severally.4 
Where  in  an  action  of  partition  defendant  claims  a  lien 
on  the  property  because  of  the  payment  of  a  mortgage 
thereon,  plaintiff  can  ask  to  have  a  claim  for  rent  grow- 
ing out  of  the  occupancy  of  the  land  by  the  defendant 
adjusted.5 

§  1177.  Of  parties  to  the  action. — All  persons 
having  an  interest  in  the  property  sought  to  be  parti- 
tioned should  be  made  parties  to  the  action,  either  as 
plaintiffs  or  defendants;  and  while  it  is  not  absolutely 
necessary  that  creditors  having  a  specific  or  general  lien 
upon  the  entire  property  should  be  made  parties,  yet  the 
better  practice  would  seem  to  be  to  make  them  parties 
to  the  end  that  the  interests  of  all,  whether  owners  or 
lien-holders,  may  be  ascertained  and  finally  determined 
in  the  one  proceeding.6  Persons  having  apparent  or 

1  McGillivray  v.  Evans,  27  Cal.,          »  Wilcke   v.    Wilcke,   71   N.   W., 
92.  201. 

2  Gates  v.  Salmon,  35  Cal.,  576.  e  Code,     Sec.    4244;     see     Ham- 
s  Code,  Sec.  4240.                                  mond  v.  Perry,  38-217. 

<  Johnson  v.  Moser,  72-523. 


§§1178,  1179.]  I'AitTJTiox.  413 

contingent  interests  in  the  property  may  be  made  par- 
ties to  the  proceedings,  and  the  proceeds  of  the  property, 
or  the  property  itself  in  case  of  partition,  will  be  subject 
to  the  order  of  the  court  until  the  right  becomes  fully 
vested;  and  the  ascertained  share  of  any  absent  owner 
will  be  retained  or  the  proceeds  invested  for  his  benefit 
under  an  order  of  the  court.7  Lands  assigned  to  a  widow 
as  dower  prior  to  the  institution  of  an  action  of  partition 
by  the  heirs  are  not  subject  to  partition  or  sale  in  such 
action.8  Xo  person  having  an  interest  in  the  property 
sought  to  be  partitioned  or  holding  a  lien  thereon  will 
be  bound  by  the  proceedings  in  the  action  unless  he  is 
made  a  party  thereto.9 

§  1178.  When  partition  is  not  the  proper  remedy. 
—In  an  action  to  foreclose  a  title-bond  conditioned  to 
convey  the  undivided  half  of  certain  real  estate,  one 
holding  a  part  thereof  under  a  deed  from  the  vendee  is 
properly  made  a  defendant,  and  by  a  pleading  in  the  na- 
ture of  a  cross-bill  may  ask  a  partition  and  the  enforce- 
ment of  the  lien  upon  the  land  not  claimed  by  him.  Sec- 
tion 4240,  of  the  code,  providing  for  partition,  is  not  ap- 
plicable to  such  a  case,  but  equity  has  jurisdiction  and 
may  grant  the  relief  asked.10  Partition  cannot  be  had 
of  real  estate  owned  in  severalty  by  several  owners  for 
the  purpose  of  determining  metes  and  bounds  of  the  sev- 
eral portions.11  A  partition  of  the  lands  .of  an  estate 
should  not, be  ordered  until  it  is  determined  that  the 
personal  estate  is  sufficient  to  pay  the  debts;12  nor  un- 
til it  is  determined  that  it  will  not  be  necessary  to  stell 
real  estate  to  pay  the  debts,  but  the  action  may  be 
brought  before  the  question  of  the  liability  of  the  land 
for  debts  is  settled.13  And  it  is  held  that  a  decree  of  par- 
tition should  not  be  entered  within  one  year  after  notice 
of  administration  has  been  given.14 

§  1179.    Of  partition  of   water-power,   mills,  ma- 

7  Code,  Sec.  4243.  «  Johnson  v.  Moser,  72-523. 

s  Clark  v.  Richardson,  32-399.  12  Snyder  v.  Snyder,  75-255. 

B  Lewis  v.  Atkinson,  15-3fil.  "Clarity  v.  Sheridan,  91-304. 

10  Hammond  v.  Perry,  38-217.  n  Minear  v.  Hogg,  63  N.  W.,  444. 


414  PAKTITION.  [§  1179. 

chinery,  dams,  etc. — Partition  may  be  made  where 
parties  own  in  common  a  water-power,  mills,  machinery, 
dams  and  other  appurtenances,  and  where  either  party 
insists  upon  such  partition  it  must  be  made  regardless 
of  the  inconvenience  or  hardship  occasioned  thereby.15 
In  such  cases  the  rules  governing  the  partition  should 
be  certain,  definite,  and  self-adjusting,  so  that  they  will 
readily  apply  to  all  conditions  of  the  power;  and  to 
effect  such  partition  the  lands  covered  by  the  water  and 
dam  may  be  divided  by  metes  and  bounds,  and  one  of 
the  parts  thereof  assigned  to  each  party,  subject  to  the 
charge  of  keeping  the  dam  in  repair  by  the  one  to  whom 
the  part  including  it  is  assigned,  and  a  right  to  use  such 
portion  of  the  water'as  may  be  assigned  to  each  owner, 
the  extent  of  which  may  be  indicated  by  some  visible 
monument,  or  by  controlling  the  flowage  of  water 
through  the  gates.16  Where  a  grant  of  a  party  of  a 
water-power  stipulated  that  the  grantee  should  have 
"the  right  to  use  water  to  the  amount  of  the  issue  of  the 
wheel  now  in  use  at  said  mill,  supposed  to  be  about  six 
hundred  inches,  more  or  less,  of  water,"  it  was  held  that 
the  amount  of  water  which  the  grantee  might  use, 
should  be  measured  by  the  capacity  of  the  wheel  in  the 
mill  at  the  time  of  the  execution  of  the  deed,  and  that  the 
terms  in  the  deed  specifying  the  amount  as  six  hundred 
inches  were  descriptive  only,  and  not  a  limitation;  and 
that  the  grantee  was  not  limited  to  the  use  of  one  wheel, 
but  could  put  in  operation  any  number  he  pleased,  pro- 
vided they  did  not  use  in  the  aggregate  more  water  than 
did  the  one  wheel  originally  in  the  mill.17  In  an  action 
for  the  partition  of  water-power,  partition  should  be 
made  by  referees  under  rules  established  by  the  court, 
and  in  apportioning  the  amount  of  water  permitted  to 
be  used  under  a  grant  a  fixed  and  unvarying  measure 
should  be  adopted  and  an  allowance  of  the  water  requi- 

is  Cooper  v.  The  Cedar  Rapids  etc.,  42-398;    Doan  v.  Metcalf,  46- 

Water-Power  Co.,  42-398;    Doan  v.  120. 

Metcalf,  46-120.  1T  Doan  v.  Metcalf,  46-120. 

is  Cooper   v.   The  Cedar  Rapids, 


§§  1180,  1181.]  PARTITION.  415 

site  to  carry  two  sets  of  burrs  and  the  necessary  machin- 
ery for  bolting,  does  not  furnish  such  a  measure.18  If, 
however,  partition  in  kind  can  only  be  effected  by  means 
of  a  large  expenditure,  it  will  not  be  ordered,  but  a  sale 
will  be  ordered  and  a  division  of  the  proceeds  of  such 
sale  made.19 

§  1180.  Of  the  interest  of  the  widow  and  of  the 
homestead.  — In  case  of  partition  of  the  real  estate  of 
the  husband  where  his  widow  as  his  heir  at  law  takes 
one-half  of  his  estate,  she  can  not  be  compelled  to  take 
the  homestead  as  a  part  of  her  share.20  The  homestead 
may  be  awarded  to  the  proper  owner  or  tenant  without 
any  detriment  to  his  co-tenants.21  Lands  assigned  to  the 
widow  as  dower  prior  to  the  institution  of  an  action  by 
the  heirs  for  partition,  are  not  subject  to  partition  or 
sale  in  such  action,  and  she  has  a  right  to  claim  and  hold 
the  specific  property  assigned  to  her  as  her  dower, 
though  the  dower  be  but  a  life  estate.22  But  in  case  of  a 
sale,  or  abandonment  of  the  homestead  by  the  survivor, 
the  heirs  may  have  partition  thereof.23  While  in  an  ac- 
tion of  partition  the  widow's  share  may  be  set  off  to  her, 
yet  she  cannot  be  compelled  to  elect  between  the  home- 
stead and  her  distributive  share  until  it  has  been  deter- 
mined whether  any  and,  if  so,  how  much  of  the  realty 
must  be  sold  for  the  payment  of  debts.24 

§  1181.  Of  partition  of  land  owned  by  a  firm.— 
Where  plaintiff  and  defendant  entered  into  a  partner- 
ship for  the  purchase  and  sale  of  certain  lands  with  de- 
fendant's money,  plaintiff's  service  being  put  against 
the  use  of  defendant's  money,  with  the  understanding 
that  upon  the  sale  of  the  lands  defendant  should  be  re- 
imbursed the  money  advanced,  with  interest,  and  that 
the  profits  of  the  venture  should  be  divided,  and  the 
lands  were  purchased  accordingly  in  defendant's  name, 

is  Doan  v.  Metcalf,  46-120.  21  Thorn  v.  Thorn,  14-49,  55. 

i»  Brown   v.    Cooper,   67    N.   W.,  22  Clark  v.  Richardson,  32-399. 

378.  23  Size  v.  Size,  24-580. 

20  Nicholas    v.    Purczell,   21-265;  24  Thomas  v.  Thomas,  73-657. 
Code,  Sec.  2985;    Dodds  v.  Dodds, 
26-311;  Burns  v.  Keas,  21-258. 


416  PARTITION.  [§§  1182,   1183 

the  lands  could  not  be  partitioned  until  the  final  settle- 
ment25 

§  1182.  Of  notice. — Original  notice  must  be  issued 
and  served  the  same  as  in  any  other  case,  and  where  the 
defendants  can  not  be  personally  served  within  this 
State,  service  by  publication  may  be  made  as  to  them; 
and  when  all  the  parties  in  interest  have  been  duly  noti- 
fied to  appear  and  answer  in  either  of  the  ways  above 
mentioned,  the  proceedings  in  the  action  will  be  binding 
and  conclusive  upon  all  of  them.26 

§  1183.  Of  the  petition  and  what  it  must  contain. 
—The  petition  must  describe  the  property  and  the  re- 
spective interests  of  the  several  owners  thereof,  if  known ; 
if  any  interests  or  the  owners  of  any  interests  are  un- 
known, contingent  or  doubtful,  these  facts  must  be  set 
forth  with  reasonable  certainty.27  The  provisions  of  the 
code  as  to  what  a  petition  for  partition  shall  contain  are 
mandatory,  and  partition  can  not  be  granted  under  an 
insufficient  petition.28  Where  a  petition  is  filed  by  dev- 
isees for  a  partition  of  real  estate  which  shows  that 
more  than  four  years  have  elapsed  since  the  testator's 
death,  it  is  not  demurrable,  because  it  fails  to  allege  that 
the  estate  has  been  finally  settled  and  is  solvent,  as  a 
compliance  with  the  law  is  presumed.29 

The  plaintiff  must  attach  to  his  petition,  and  the  de- 
fendant to  his  answer,  if  he  claims  title,  an  abstract  of 
the  title  relied  on,  showing  from  and  through  whom 
such  title  was  obtained,  together  with  a  statement  show- 
ing the  book  and  page  on  which  the  same  appears  of 
record.  If  such  title  or  any  portion  thereof  is  not  in 
writing  or  does  not  appear  of  record,  such  fact  must  be 
stated  in  the  abstract;  and  either  party  must  furnish  the 
adverse  party  a  .copy  of  any  unrecorded  conveyances,  or 
with  a  reasonable  excuse  for  not  so  doing  within  a  rea- 
sonable time  after  demand  therefor.30  When,  however, 
both  parties  claim  under  the  same  title  one  cannot  ques- 

25  Pennybaker  v.  Leary,  65-220.  28  Darr  v.  Darr,  71  N.  W.,  419. 

26  Code,  Sec.  3534.  29  Minear  v.  Hogg,  63  N.  W.,  444. 

27  Code,  Sec.  4241.  so  Code,  Sec.  4242. 


§  1183.]  PARTITION.  417 

tion  the  right  of  the  other  to  relief  on  the  ground  of  an 
insufficient  showing  of  title.31 

The  petition  may  be  in  the  following  form: 

FORM  OF  PETITION  IN  PARTITION. 
Title,  ) 
Venue,  y 

Par.  1.    The  plaintiff  states,  that  on  the day  of ,  IS—, 

one  died  intestate,  seized  in  fee  of  the  following  described  real 

estate  (here  describe  premises  sought  to  be  partitioned.) 

Par.  2.    That  the  said  deceased  left  as  his  children  and  only  heirs 

at  law  the  plaintiff  and  defendants  .     (If  any  of  the  heirs  have 

married,  their  husbands  or  wives,  as  the  case  may  be,  should  be  made 
parties,  and  the  fact  of  the  inter-marriage  stated.  Here  insert  names  of 
all  the  defendants,  and  if  any  are  minors,  state  that  fact  and  give  their 
ages.) 

Par.  3.  That  the  plaintiffs  and  defendants  a:  2  each  entitled  to  an. 
undivided  (here  state  the  shares  of  each,  as  one-half  or  one-sixth,  as 
the  case  may  be)  of  the  said  real  estate. 

Par.  4.    That  the  defendant,  ,  is  the  widow  of  the  deceased, 

and  is  entitled  to  an  undivided  (here  state  her  interest)  of  the  said  real 
estate. 

Par.  5.  That  the  several  owners  of  said  above  described  premises 
are  unable  to  agree  mutually  upon  a  division  thereof.  (Where  there  are 
minors,  or  other  parties  having  an  interest  in  the  property  who  are  un- 
der legal  disability  this  paragraph  may  be  omitted.) 

Par.  6.  The  plaintiff  attaches  to  his  petition  an  abstract  of  the  title 
relied  upon  by  him,  marked  exhibit  "A,"  and  made  a  part  hereof  (if 
those  holding  incumbrances  are  made  parties,  insert  one  of  the  para- 
graphs given  below  here.) 

Wherefore,  plaintiff  demands  judgment  confirming  the  shares  of  the 
parties  as  above  alleged,  in  and  to  said  real  estate;  that  partiton  there- 
of be  made,  or  if  the  same  can  not  be  equitably  divided,  then  that  a  sale 
of  said  premises  be  ordered,  and  a  division  of  the  proceeds  be  made  be- 
tween them  according  to  their  respective  shares,  and  that  the  sum  of 

• dollars  be  allowed  plaintiff's  attorney  for  his  fees  in  said  action, 

and  that  the  same  be  made  a  lien  upon  the  respective  shares  of  the 
parties  in  the  above  described  premises,  in  proportion  to  their  said  in- 
terests, and  for  costs  of  this  action,  and  for  such  other  and  further  relief 
as  may  be  deemed  equitable  in  the  premises. 

— ,  attorney  for  plaintiff, 

(Petition  may  be  verified  if  desired,  also  attach  exhibit  mentioned 
in  petition.) 

Where  there  are  incumbrances  on  any  part  of  the 
premises,  and  the  holders  thereof  are  made  parties,  the 
facts  relating  to  such  incumbrances,  the  names  of  the 
holders  and  a  description  of  their  liens,  their  several 

si  Shane  v.  McNeill,  76-459. 
Vol.  11—27 


418  PARTITION".  [§  1183 

amounts,  and  upon  what  part  of  the  premises  they  exist, 
must  be  stated,  and  in  such  case  the  following  averments 
should  be  included  in  the  petition: 

FORM  OF  ADDITIONAL  PARAGRAPHS  WHERE  THERE  ARE   IN- 
CUMBRANCES  ON   THE  PROPERTY   TO  BE   PARTITIONED. 

Par.  7.     That  the  defendant, ,  holds  a  judgment  recovered  in 

the  district  court  of county,  Iowa,  on  or  about  the day  of 

— ,  18 — ,  in  a  certain  action  then  pending  in  said  court,  wherein  said 
defendant  was  plaintiff  and  said  —  —  deceased,  was  defendant,  (or  if 
the  judgment  was  recovere'd  by  one  of  the  defendants  against  an'other 
defendant,  the  fact  should  be  stated)  for  the  sum  of  —  —  dollars  prin- 
cipal, and dollars  costs,  which  judgment  bears  interest  at  — 

per  centum  per  annum,  and  remains  wholly  unsatisfied,  and  is  a  lien 
upon  all  the  land  described  above  (or  if  only  a  lien  on  part  of  it  so  state 
and  describe  that  part),  and  is  found  in  judgment  docket  —  — ,  page 

— ,  of  said  court,  and  in  record  —    — ,  page  —     — ,  of  said  court. 

(If  the  lien  is  in  the  form  of  a  mortgage  the  following  paragraph 
may  be  added.) 

Par.  8.     That  the  defendant,  ,  holds  a  mortgage  upon  all  of 

the  said  real  estate  given  by  the  deceased  during  his  lifetime  (or  upon 

the  interest  of ,  defendant,  as  the  case  may  be),  for  the  sum  of 

—  dollars,  payable  on  the  —     -  day  of ,  18 — ,  with  interest 

from  the  -       -  day  of  —     — ,  18 — ,  at  -       —  per  centum  per  annum, 

which  said  mortgage  is  recorded  in  the  recorder's  office  of county, 

Iowa,  in  book  —       —  of  mortgages,  at  page ,  and  no  part  of  the 

same  has  been  paid. 

If  the  liens  are  set  out  in  petition,  the  prayer  should 
be  in  the  following  form : 

"Wherefore  the  plaintiff  prays  judgment;  confirming  the  shares  of 
the  parties  as  above  set  forth  in  and  to  said  real  estate;  that  partition 
thereof  be  made,  or,  if  the  same  can  not  be  equitably  divided,  then  that 
said  premises  be  sold  and  a  division  of  the  proceeds  made  between  them 
according  to  their  respective  shares;  that  the  amount  of  the  said  sev- 
eral liens  above  stated  may  be  ascertained;  and  that  if  said  land  is  par- 
titioned, said  amounts  may  be  decreed  to  be  a  lien  upon  the  interests 
of  said  parties  against  whom  said  liens  exist  respectively. 

"That  if  said  real  estate  be  sold,  the  funds  arising  from  such  sale 
be  divided  among  the  parties  according  to  their  respective  interests,  ex- 
cept that  the  amount  of  incumbrance  heretofore  referred  to  be  de- 
ducted from  the  shares  of  the  parties  owing  the  same,  and  paid  to  the 
respective  lien-holders  before  the  proceeds  of  said  sale  are  paid  over." 
(Add  clause  in  prayer  above  relating  to  attorney's  fees,  costs,  etc.) 

It  would  seem  that  this  action  can  not  be  maintained 
when  there  are  no  parties  under  legal  disability,  unless 
the  parties  can  not  agree  among  themselves  to  a  division. 


§  1184.]  PARTITION.  419 

and  the  fact  that  they  can  not  so  agree  should  be 
pleaded.32 

§  1184,  Of  the  answer. — Answers  of  the  defendants- 
must  state,  among  other  things,  the  amount  and  nature 
of  their  respective  interests;  they  may  deny  the  interest 
of  any  of  the  plaintiffs,  and  by  supplementary  pleading, 
if  necessary,  may  deny  the  interest  of  any  of  the  other 
defendants.33 

Ordinarily  it  would  be  better  if  each  defendant  an- 
swered separately.  There  must  be  attached  to  the  an- 
swer of  any  defendant  claiming  title,  the  abstract  of  the 
title  relied  on,  showing  from  and  through  whom  such 
title  was  obtained,  together  with  the  statement  showing 
the  book  and  page  on  which  the  same  appears  of  record, 
and  if  such  title  or  any  portion  thereof  is  not  in  writing 
or  does  not  appear  of  record,  such  fact  must  be  stated  in 
the  abstract.34  Issues  may  thereupon  be  joined  and 
tried  between  any  of  the  contesting  parties,  the  question 
of  costs,  on  such  issues,  being  regulated  between  the  con- 
testants as  in  other  cases.35  Where  the  answer  in  an  ac- 
tion of  partition  of  a  grist-mill  set  up  that  rents  were  due 
to  the  defendant,  and  that  the  plaintiffs  while  in  posses- 
sion under  a  lease  allowed  the  mill  to  be  out  of  repair  to 
the  damage  of  defendant  in  the  sum  of  several  hundred 
dollars,  for  which  they  are  liable  under  .their  lease,  it 
was  held  that  the  court  should  have  heard  the  parties 
upon  these  allegations.36 

If  the  statements  in  the  petition  are  not  contradicted 
by  the  answers,  and  the  facts  stated  in  the  answers  mak- 
ing a  new  or  different  claim  of  title  from  that  stated  in 
the  petition  are  not  denied  in  the  reply,  or  if  the  state- 
ments in  the  petition  and  answers  are  not  contradicted 
by  documentary  evidence  of  title,  they  must  be  taken  as- 
true.37 

32  Code,    Sec.    4185;     Starry    v.         35  Code,  Sec.  4246;  Finch  v.  Gar- 
Starry,  21-254.  rett,  71  N.  W.,  429. 

33  Code,   Sec.   4245.  a«  Metcalf  v.  Hoopingardner,  45- 
si  Code,  Sec.  4242.                                 510. 

ST  Code,  Sec.  3622. 


420  PARTITION.  [§  1185. 

§  1185.  Of  minors. — If  any  of  the  defendants  are 
minors,  the  court  must  appoint  a  guardian  ad  litem  to 
answer  for  them.  No  order  or  judgment  can  be  ren- 
dered against  a  minor  until  he  has  been  legally  served 
with  notice,  and  an  answer  by  guardian  made  for  him.38 
The  answer  of  the  guardian  ad  litem  should  be  filed  be- 
fore the  judgment  is  entered,  and  the  guardian  should 
be  certain  that  the  service  on  the  minor  is  sufficient. 

FORM  OF  ORDER  APPOINTING  GUARDIAN  AD  LITEM. 

Title,  i 
Venue.  / 

And  now  at  this  day,  to  wit,  (the  date  of  the  order)  this  cause  com- 
ing on  to  be  heard  on  motion  of  the  plaintiff  for  the  appointment  of  a 
guardian  ad  litem  for  (name  of  infant  defendants)  and  it  appearing  to 
the  court  that  said  defendants  are  infants,  and  that  they  have  been 
legally  served  with  notice  of  the  pendency  of  this  suit,  it  is  therefore 

ordered  that ,  Esq.,  be  and  is  hereby  appointed  guardian  ad  litem 

herein  for  said  minor  defendants. 

The  guardian  ad  litem  may  make  such  answer  as  the 
facts  in  the  case  warrant,  but  he  must  not  make  any  ad- 
missions which,  in  any  event,  can  prejudice  the  rights  of 
the  infant  whom  he  represents.  He  is  not  limited  to  a 
»mere  defense  of  the  action,  but  may  interpose  any  matter 
which  will  defeat  the  action,  to  the  extent,  if  necessary, 
of  matter  pleaded  as  a  cross-petition.39 

His  answer  may  be  in  the  following  form: 

FORM  OF  ANSWER  OF  GUARDIAN  AD  LITEM. 
Title,  ) 
Venue.  \ 

,  the  duly  appointed  guardian  ad  litem  herein  for  (name  of 

minors),  says: 

Par.  1.  That  of  the  truth  of  no  allegation  in  plaintiff's  petition  has 
he  knowledge  or  information  sufficient  to  form  a  belief. 

Par.  2.  That  of  the  share  or  interests  to  which  his  wards  are  en- 
titled in  the  premises  described  in  plaintiff's  petition  he  has  neither 
knowledge  or  information  sufficient  to  form  a  belief. 

ss  Code,  Sees.  3480,  3482,  3483;  shaw,  47-291;  Wickersham  v.  Tim- 
Good  v.  Norley,  28-188;  Judd  v.  mons,  49-267;  Hoover  v.  Kinsley 
Mosley,  30-423;  Cavender  v.  Heirs  Plow  Co.,  55-668;  Smith  v.  Dawley, 
of  Smith,  5-157,  and  'cases  cited;  92-312;  Dohms  v.  Mann,  76-723; 
Allen  v.  Saylor,  14-435;  see  Trieber  Kavalier  v.  Machula,  77-121. 
v.  Shafer,  18-29;  Drake  v.  Han-  39  Kelsey  v.  Kelsey,  57-383,  385. 


§§  1186,    1187.]  PARTITION.  421 

Wherefore  he  asks  that  the  rights  and  interests  of  said  minors 
therein  may  be  duly  protected  by  the  court. 

,  guardian  ad  litem,  etc. 

It  is  sometimes  the  case  that  a  guardian  ad  litem  is  not 
fully  conversant  with  the  rights  of  his  wards,  and  when 
this  is  so  the  form  above  given  of  an  answer  will  gener- 
ally be  sufficient  to  protect  all  their  rights;  but  where 
the  guardian  is  conversant  with  all  the  facts  in  the  case, 
he  should  set  them  out  in  his  answer,  as  in  any  other 
case. 

Sometimes  the  pleader  in  his  petition,  by  accident  or 
oversight,  does  not  properly  set  out  the  shares  to  which 
the  parties  are  entitled,  and  the  guardian  standing  as  the 
representative  of  the  minor  should  be  careful  to  see  that 
his  ward  secures  all  that  he  is  entitled  to  under  the  law. 

The  answer  of  the  guardian  ad  litem  need  not  in  any 
case  be  verified.40 

§  1186,  Of  disclaimer. —Any  defendant  having  no 
interest  in  the  property  in  controversy  may  enter  a  dis- 
claimer, which  may  be  in  the  following  form: 


Title, 
Venue 


,) 


Par.  1.    The  defendant, ,  says:     That  he  disclaims  having  any 

interest  or  title  whatever  in  and  to  any  of  the  real  estate  mentioned  and 
described  in  plaintiff's  petition. 

Wherefore  he  asks  to  be  dismissed  with  his  costs. 

,  attorney  for  defendant. 

§  1187.  Of  practice. — The  statute  relating  to  parti- 
tion has  reference  alone  to  real  property.41  Either  party 
is  required  to  furnish  the  adverse  party  with  a  copy  of 
any  unrecorded  conveyance  upon  which  he  relies,  or 
furnish  a  satisfactory  reason  for  not  so  doing  within  a 
reasonable  time  after  demand  therefor,  and  no  written 
evidence  of  title  can  be  introduced  on  the  trial,  unless  it 
has  been  sufficiently  referred  to  in  the  abstract  hereto- 
fore mentioned,  which  abstract  may  on  motion  be  made 

*o  Code,  Sec.  3586.  41  Cooper  v.  C.,  R.  W.  P.  Co.,  42- 

398 


422  PAKTITIOX.  [§  11S8. 

more  specific,  and  may  be  amended  as  other  pleadings.42 
§  1188.  Of  incumbrances. — The  court,  before  mak- 
ing any  order  of  sale  or  partition,  may  refer  the  case  to  a 
clerk,  or  referee,  to  report  the  nature  and  amount  of 
general  incumbrances  by  niortgage,  judgment  or  other- 
wise, if  there  be  any,  upon  any  portion  of  the  property.43 
The  referee  must  give  the  parties  interested  at  least  five 
days'  notice  of  the  time  and  place  when  he  will  receive 
proof  of  the  amounts  of  such  incumbrances.44 

The  notice  provided,  for  may  be  in  the  following  form: 

REFEREE'S  NOTICE  TO  INCUMBRANCERS. 
Title, 
Venue, 

To  (names  of  incumbrancers) ,  and  each  of  you: 

Whereas,  the  undersigned  was,  on  the  day  of  ,  18 — , 

duly  appointed  by  (the  name  of  the  court)  a  referee  in  the  above  entitled 
cause,  to  report  the  nature  and  amount  of  general  incumbrances,  if  any, 
upon  the  real  estate  involved  in  said  cause,  to  wit:  (Here  describe  the 
property.) 

You  are,  therefore,  hereby  notified  that  on  the day  of , 

18 — ,  between  the  hours  of o'clock  a.  m.,  and o'clock  p.  m., 

(or  as  the  case  may  be)  I  will  attend  at  (name  office,  or  place  in  town 
or  city)  for  the  purpose  of  receiving  proofs  of  the  amounts  of  such  in- 
cumbrances, at  which  time  and  place  you  can  attend  if  you  think  proper. 

Dated ,  etc. 

,  referee. 

And  if  any  question  arise  as  to  the  validity  or  amount 
of  an  incumbrance,  or  the  payment  of  the  same,  the 
court  may  direct  an  issue  to  be  made  up  between  the  in- 
cgmbrancer  and  the  owner,  and  an  adjudication  thereon 
will  be  decisive  of  their  respective  rights,  and  upon 
a  sale  it  may  order  the  money  to  be  retained  or  invested 
to  await  final  action  in  relation  to  its  disposition,  and 
notice  thereof  to  be  forthwith  given  to  the  incumbrancer, 
unless  he  has  already  been  made  a  party.45  If  the  lien 
is  upon  one  or  more  undivided  interests  the  holder  there- 
of must  be  made  a  party,  and  the  lien  will,  after  parti- 
tion or  sale,  remain  a  charge  upon  the  particular  inter- 
ests, or  the  proceeds  thereof,  but  the  amount  of  costs  is  a 

«  Code    Sec.  4242.  44  Code,  Sec.  4248. 

«  Code,  Sec.  4247.  <5  Code,  Sec.  4249. 


§  1189.]  PARTITION.  -123 

charge  upon  these  interests  paramount  to  all  their 
liens.46 

But  proceedings  in  relation  to  incumbrances  will  not 
delay  the  distribution  of  the  proceeds  of  other  shares  not 
affected  thereby.47  An  agreement  by  an  heir  binding 
him  to  pay  off  a  certain  incumbrance  on  the  property 
does  not  create  a  lien  which  can  be  set  up  against  him 
in  a  partition  proceeding,  but  taxes  which  such  heir  has 
agreed  to  pay  should  be  made  a  lien  upon  his  share.48 

If  a  tenant  for  life  or  years  be  entitled  as  such  to  a 
part  of  the  proceeds  of  sale,  and  if  the  parties  can  not 
agree  upon  the  sum  in  gross  which  they  will  consider  an 
equivalent  for  such  estate,  the  court  must  direct  the 
avails  of  the  incumbered  property  to  be  invested,  and  the 
proceeds  to  be  paid  to  the  incumbrancer  during  the  life- 
time of  the  incumbrance.49 

Where  one  tenant  in  common  has  made  valuable  im- 
provements on  a  homestead,  and  a  sale  in  partition  be- 
comes necessary,  it  seems  the  court  will  see  that  the 
value  of  the  homestead  or  improvements,  distinct  from 
the  land,  will  be  secured  to  the  party  at  whose  expense 
and  labor  they  have  been  made.50  The  court  in  its  dis- 
cretion may  require  all  or  any  of  the  parties  before  they 
receive  the  money  arising  from  any  sale  in  partition 
proceedings  to  give  satisfactory  security  to  refund  such 
moneys  with  interest,  in  case  it  afterward  appears 'that 
such  parties  were  not  entitled  to  receive  it.51 

§  1189.  Of  decree. —When  the  shares  and  interests 
of  the  parties  have  been  settled  by  a  trial  of  the  issues, 
or  by  failure  to  controvert  the  allegations  of  the  petition, 
or  answers,  decree  must  be  rendered  establishing  the 
right  of  the  parties,  confirming  the  shares  and  interests 
of  the  owners  of  the  land  and  directing  partition  to  be 

46  Code,    Sec.    4250;     Metcaii    v.  so  Thorn  v.   Thorn,   14-49;    Kill- 
Hoopingardner,    45-510,    512;    Ap-  mer  v.  Wuchner,  79-722;    Van  Or- 
lington  v.  Nash,  80-488.  mer  v.  Harley,  71  N.  W.,  241. 

47  Code,  Sec.  4251.  51  Code,     Sec.    4270;    Clarity    v. 

48  Rider  v.  Clark,  54-292.  Sheriden,  91-304. 

49  Code,  Sec.  4271;  see  Clark  v. 
Richardson,  32-399. 


421  PARTITION.  [§  1190. 

made  accordingly.52     If  jurisdiction  was  not  acquired  of  \v 
all  the  parties  interested  the  proceedings  will  not  be  void 
or  voidable  as  to  those  over  whom  jurisdiction  was  ac- 
quired.53    As  to  the  effect  of  the  judgment  in  partition.54 
The  decree  may  be  in  the  following  form  : 


FORM  OF  DECREE  IN  PARTITION. 
Title, 
Venue, 


,  ) 
,  f 


And  now,  on  this  day,  to  wit  (date  of  judgment),  this  cause  came  on 
for  trial  upon  the  issues  joined  herein,  --  ,  Esq.,  appearing  for  the 
plaintiff,  --  ,  Esq.,  appearing  for  (the  adult  defendants),  and  —  —  , 
Esq.,  the  duly  appointed  guardian  ad  litem  for  (names  of  infants),  ap- 
pearing for  said  minor  defendants.  And  the  court  having  heard  and 
inspected  the  proofs  of  the  parties,  and  heard  the  arguments  of  counsel, 
it  is  found  and  adjudged  by  the  court,  that  the  plaintiff  and  the  defend- 
ants each  are  the  owners  in  fee  simple  of  the  undivided  (state  the  share 
of  each,  as  one-fourth,  as  the  case  may  be),  of  the  following  described 
real  estate,  namely  (describe  the  premises). 

It  is  therefore  considered  and  adjudged  that  the  said  shares  of  the 
said  parties  and  their  said  interests  respectively  in  said  lands,  be,  and 
the  same  are  hereby  established  and  confirmed;  and  it  is  further 
ordered  that  partition  thereof  be  made  accordingly,  and  that  -  and 
-  be,  and  they  are  hereby,  appointed  to  make  said  partition  and 
report  the  same  at  (the  present  or  the  next)  term  of  this  court. 

This  decree  is  to  be  construed  by  the  same  rules  that 
apply  to  ordinary  conveyances.55 

§  1190.  Of  the  appointment  of  referees.  —  Upon 
entering  a  decree  the  court  must  appoint  referees  to 
•make  partition,  unless  the  parties  agree  to  a  sale  of  the 
property,  or  when  it  is  shown  that  the  property  cannot 
be  equitably  divided  into  the  requisite  number  of  shares, 
in  which  case  a  sale  must  be  ordered.  Three  referees 
will  be  appointed  to  make  partition  unless  the  parties 
agree  to  the  appointment  of  a  less  number,  but  where  it 
is  shown  that  partition  can  not  be  made  and  a  sale  is 
ordered,  the  court  may  fix  the  number  of  referees.  Such 
referees  may  be  notified  of  their  appointment  by  the  clerk 
of  the  court,  or  by  the  attorney  procuring  their  appoint- 

52  Code,  Sec.  4252.  dick  v.  C.,  M.  &  St.  P.  R.  Co.,  87- 

53  Williams  v.  Wescott,  77-332.  384. 

54  Ocheltree  v.  Hill,  77-721;  Bur-         55  Hoffman  v.  Stigers,  28-302. 


§  1191.]  PARTITION.  425 

ment.56  Usually  where  there  is  no  contest,  referees  are 
suggested  by  the  plaintiff  in  the  action,  or  his  attorney, 
and  if  they  are  suitable  parties,  they  are  generally  ap- 
pointed. The  commission  to  referees  may  be  in  the  fol- 
lowing form: 

FORM  OF  COMMISSION  TO  REFEREES. 

The  State  of  Iowa. 
• and ,  greeting: 


Whereas,  on  the day  of ,  18 — ,  in  an  action  now  pending 

in  the  district  court  of county,  Iowa,  wherein  —       —  is  plaintiff, 

and are  defendants,  it  was  found  by  the  court  that  the  said  plain- 
tiff, and  the  said  defendants,  each  are  the  owners  in  fee  simple  of  the 
undivided  (here  state  share),  of  the  following  described  real  property, 
to  wit  (here  particularly  describe  the  premises  to  be  divided),  and  it 
was  then  and  there  ordered  and  adjudged  by  said  court,  that  the  said 
shares,  and  title  of  the  said  parties  respectively  in  and  to  said  real  es- 
tate be  established  and  confirmed,  and  that  partition  thereot  between 
said  parties  be  made  by  (names  of  referees). 

Now,  therefore,  you  are  hereby  empowered  and  commanded  to  make 
partition  of  the  real  estate  above  described,  between  the  said  (names  of 
all  the  parties  entitled  to  shares),  by  assigning  t;o  each  of  them  one- 
fifth  in  value  thereof  in  severalty  (or  any  other  division  that  may  be 
ordered  by  the  court),  according  to  law.  And  that  you  make  report  in 
writing  of  such  partition,  together  with  a  plat  of  the  premises,  on  or  be- 
fore the  first  day  of  the  next  term  of  our  said  court  (or  at  the  present 
term,  as  the  case  may  be). 

Witness ,  clerk  of  said  court,  with  the  seal  thereof  hereto  af- 
fixed, this day  of ,  18—. 

[Seal.]  ,  clerk,  etc. 

§  1191.  Of  directions  to  referees. — The  court  must 
determine,  at  the  time  of  entering  decree,  Whether  par- 
tition of  the  premises  can  be  made,  and  if  so,  make  an 
order  to  that  effect;  if  not,  it  must  direct  the  property  to 
be  sold.57  Where  a  division  of  the  property,  though 
practical,  would  greatly  depreciate  its  value,  the  court 
may  order  a  sale.58  The  commission  to  the  referees  must 
state  whether  they  are  to  sell  the  property,  or  divide  it. 
The  court  may  direct  them  to  allot  particular  portions 
of  the  land  to  particular  individuals,  but  unless  it  does 
so,  the  shares  must  be  made  as  nearly  as  possible  of 
equal  value.59  So,  they  may  be  ordered  to  partition  a 

66  Code,  Sec.  4253.  68  Branscomb  v.  Gilliam,  55-235. 

57  Code,    Sec.    4253;  -  Metcalf    v.          so  Code,     Sec.     4256;     Thorn    v. 
Hoopingarrlner,  45-510.  Thorn,  14-49. 


426  PARTITION.  [§§H02,    1193. 

portion  and  sell  a  por.tion,  when  partition  can  not  be 
conveniently  made  of  all  the  property  in  controversy.60 
Slight  deviations  by  the  referees,  where  it  is  necessary 
in  the  partition  of  property,  are  not  fatal  to  the  proceed- 
ings, and  the  final  judgment  may  correct  any  erroneous 
computation  or  inaccuracy  in  their  report.61  They  may 
also  be  required  to  report  at  the  term  of  court  at  which 
the  order  is  made,  or  at  a  subsequent  term;  and  where 
lands  are  directed  to  be  sold,  and  the  court  is  satisfied 
that  they  can  be  disposed  of  to  better  advantage  and  with 
less  expense  at  private  sale,  the  referees  may  be  directed 
to  sell  the  same  at  private  sale,  in  such  manner  and  on 
such  terms  as  the  court  may  direct;  but  in  such  case  the 
real  estate  must  be  duly  appraised  by  three  disinterested 
freeholders,  appointed  by  the  court,  and  sold  for  not  less 
than  the  appraised  value.62 

§  1192.  Of  the  qualifications  of  referees. — Before 
entering  upon  the  discharge  of  their  duties,  the  referees 
must  be  sworn.  They  should  make  affidavit,  w^hicb  must 
be  filed  with  the  clerk,  and  may  be  in  the  following  form: 

FORM  OF  OATH  OF  REFEREES  IN  PARTITION. 

Title, 
Venue. 

State  of  Iowa,     ) 
County,    f  s£ 

We  (names  of  referees)  do  severally  swear  that  we  will  well  and 
faithfully  perform  the  duties  of  referees  in  the  above  entitled  cuuse,  and 
make  a  just  and  equitable  partition  therein,  according  to  the  best  of  our 
knowledge  and  ability. 

(Signatures  of  referees.) 

(Add  certificate  of  officer  before  whom  they  are  sworn.) 

§  1193.     When  referees  need  not  be  appointed.— 

The  .court  need  not  appoint  referees  to  set  apart  the 
shares  of  the  respective  parties  in  a  case  wherein,  from 
the  nature  of  the  property  and  the  character  of  the  par- 
tition which  the  law  makes,  they  can  render  no  aid  to 
the  court  in  the  just  division  of  the  property.63 

eo  Code,  Sec.  4257.  «2  Code,  Sec.  4264. 

6i  Wright  v.  Marsh,  2  G.  Gr.,  94.          63  Doan  v.   Metcalf,  46-120,  128; 

see  Code,  Sec.  4253. 


§§1194,  1195.]  PARTITION.  427 

§  1194.  Of  duties  of  referees  where  partition  of 
the  property  is  made. — When  a  partition  is  ordered  by 
the  court,  the  referees  must  mark  out  the  shares  by  vis- 
ible monuments,  and  may  employ  a  competent  surveyor 
and  the  necessary  assistants  to  aid  them  in  so  doing.04 

And  they  must  allot  to  each  owner  his  proper  share$ 
and  where  the  shares  of  the  parties  are  equal,  each  tract 
set  off  to  the  parties  should  be  of  equal  value  as  nearly 
as  possible.  When  the  shares  are  not  all  equal,  the 
value  of  the  several  parcels  allotted  to  the  owners  must 
bear  the  same  proportionate  value  to  each  other  as  the 
shares  due  to  each  other.05 

§  1195.  Of  the  report  of  referees  of  partition.— 
The  report  of  the  referees  must  be  in  writing  and  signed 
by  them;  it  must  describe  the  respective  shares  with 
reasonable  particularity,  and  be  accompanied  by  a  plat 
of  the  premises.66  Their  report  may  be  in  the  following 
form: 

FORM  OF  REPORT  OF  REFEREES  WHERE  PARTITION  IS  MADE. 

Title, 
Venue. 

To  the  court: 

In  pursuance  of  an  order  of  this  court,  made  in  the  above  entitled 
cause,  on  the  —  —  day  ot  —  — ,  18 — ,  by  which  the  undersigned  were 
appointed  referees  and  directed  to  make  partition  of  the  following  de- 
scribed real  estate,  to  wit  (here  describe  the  land  to  be  divided?,  we, 
the  said  referees,  do  respectfully  report  that  we  have  made  partition 

thereof  as  follows,  to  wit:  To  the  plaintiff we  have  allotted  the 

following  described  parcel  of  said  lands,  to  wit  (here  describe  the  tract 
allotted  to  the  plaintiff),  and  designated  upon  the  plat  accompanying 

this  report  as  lot  No.  1.  To  the  defendant, ,  we  have  allotted,  etc. 

(proceed  with  each  share  in  the  same  manner  as  the  first). 

We  further  report  that  we  employed  (name  of  surveyor)  a  com- 
petent surveyor,  and  (names  of  assistants)  as  assistants,  and  with  their 
assistance  we  have  marked  out  the  respective  shares  of  the  parties  by 
visible  monuments  as  shown  in  the  plat  accompanying  this  report 
marked  exhibit  "A." 

We  further  report  that  we  were  each  actually  employed days 

64  Code,  Sec.  4254.  ec  Code,  Sec.  4255. 

65  Code,  Sec.  4256. 


428 


PAKTITION. 


[§1195. 


in  making  the  partition  aforesaid,  and  that  said  surveyor  and  assistants 
were  each  employed days,  as  aforesaid. 


All  of  which  is  respectfully  submitted. 
Dated  this day  of ,  18 — . 


(Signatures  of  referees.) 


The  plat  required  by  the  statute  should  clearly  show 
the  tract  allotted  to  each  party,  the  quantity  of  land 
therein,  the  number  of  the  same,  corresponding  with  a 
number  set  out  in  their  report,  the  name  of  the  party  on 
each  tract,  and  a  description  of  the  same  by  govern- 
mental subdivisions,  or  by  metes  and  bounds,  when 
necessary  referring  to  certain  monuments,  which  should 
be  shown  upon  the  plat.  The  plat  may  be  in  the  fol- 
lowing form: 

(Form  of  Plat.    Exhibit  A.) 
Plat  of  partition  of  lands  made  in  an  action  in  the  district  court, 


wherein 


is  plaintiff,  and 


and  others,  are  defendants: 
N.  E.  Corner. 


Stone. 


Stone. 


Stone. 


LOT  NO.  1. 

Allotted 

to 
(Name  of  Owner.) 

160  ACRES. 


LOT  NO.  3. 

Allotted 

to 
(Name  of  Owner.) 

160  ACRES. 


LOT  NO.  2. 

Allotted 

to 
(Name  of  Owner.) 

160  ACRES. 


LOT  NO.  4. 

Allotted 

to 
(Name  of  Owner.) 

160  ACRES. 


.Stone 


,Stone 


.Stone 


§§  1196,  1197.]  PARTITION.  429 

§  1196.  When  the  report  will  be  set  aside.  — Where 
it  appears  that  through  the  fraud  of  one  of  the  parties 
the  land  was  divided  and  distributed  in  violation  of  the 
rights  of  the  others,  as  settled  by  the  pleadings  and  or- 
ders of  the  court,  the  report  will  be  set  aside.67 
When  an  incumbrance  exists  upon  the  property,  and 
final  and  complete  partition  can  not  be  made  without 
providing  for  its  payment,  and  where  partition  among 
heirs  is  made  without  knowledge  of  the  incumbrance  by 
mortgage  on  part  of  the  lands,  and  the  mortgage  is  after- 
ward foreclosed  and  land  sold,  the  partition  will  be  set 
aside  and  a  new  partition  ordered  of  the  remaining  lands 
on  the  basis  of  the  former  one.68  But  fraud  in  partition 
proceedings  can  only  be  taken  advantage  of  by  one  who 
had  a  prior  interest  in  the  estate,  not  by  one  who,  subse- 
quent to  the  fraud,  purchased  an  interest  in  the  prop- 
erty.69 

If  the  report  is  unsatisfactory  to  the  parties  on  good 
cause  shown,  it  may  be  set  aside  and  the  matter  re- 
ferred to  the  same  or  other  referees.70  A  final  decree  in 
partition  procured  by  fraud  of  a  party  will  be  set  aside 
on  a  bill  of  review.71 

§  1197.  Of  confirmation  of  the  report. — If  the  re- 
port of  the  referees  is  approved  a  decree  must  be  ren- 
dered thereon  confirming  the  partition  and*  apportion- 
ing costs,  and  a  judgment  must  be  entered  therefor.72 

Such  decree  and  judgment  may  be  in  the  following 
form: 

Title,    ) 
Venue.  ) 

And  now  at  this  day,  to  wit  (give  date),  this  cause  coming  on  for 
further  and  final  hearing  upon  the  report  of  the  referees  herein  filed,  the 
plaintiff  appearing  by ,  Esq.,  his  attorney,  and  the  (state  the  sev- 
eral appearances  of  the  defendants),  and  it  appearing  to  the  court  that 

«7  Young  v.  Tucker,  39-596.  TO  Code,  Sec.  4258;  Doan  v.  Met- 

es Bridges  v.  Howard,  18-116.  calf,  46-131;  Lyons  v.  Harris,  73- 

69  Telford  v.  Barney,  1  G.  Gr.,  292. 

575;  Brace  v.  Reed,  3  G.  Gr.,  422;          ?i  Young  v.  Tucker,  39-596. 

Webster  v.  Reed,  Morris,  369.  ^2  code,  Sec.  4259;  Brown  v. 

Cooper,  67  N.  W.,  378. 


430  PARTITION.  f  §  1198. 

partition  has  been  duly  made  by  the  referees  herein  appointed,  as  fol- 
lows: (here  recite  from  the  report  the  partition  made). 

It  is  therefore  considered  and  adjudged  by  the  court  that  the  said 
partition  be  and  the  same  is  hereby  approved  and  confirmed  (then  follow 
with  such  orders  for  costs  and  attorney's  fees  as  may  be  deemed  proper). 
(The  record  entry  should  embrace  a  plat  of  the  partition.) 

§  1198.  Of  bond  of  referees  where  sale  is  made. 
—Before  making  a  sale  of  the  premises  the  referees  must 
give  a  bond  in  a  penalty  to  be  fixed  by  the  court,  payable 
to  the  parties  who  are  entitled  to  the  proceeds,  with  sure- 
ties to  be  approved  by  the  clerk,  conditioned  for  the  faith- 
ful discharge  of  their  duties,  and  at  any  time  thereafter 
the  court  may  require  further  and  additional  security; 
and  upon  failure  of  the  referees  to  comply  with  such 
orders,  they  may  be  removed  by  the  court  and  others  ap- 
pointed, and  they  may  be  removed  at  any  time  for  satis- 
factory reasons,  and  others  appointed  in  their  places.73 

The  bond  may  be  in  the  following  form: 

FORM  OF  REFEREE'S  BOND. 

Know  all  men  by  these  presents,  that  we, and ,  princi- 
pals, and  -  and  ,  sureties,  are  held  and  firmly  bound  unto 

(insert  the  names  of  all  the  parties  in  the  partition  action),  in  the  sum 
of  —  —  dollars,  lawful  money  of  the  United  States,  well  and  truly  to  be 
paid  to  them,  their  heirs,  executors  and  assigns. 

The  condition  of  the  above  obligation  is  such  that,  whereas,  the 

above  named  principals  were  on  the day  of ,  18 by  the 

district  court  of  -  —  county,  Iowa,  duly  appointed  referees,  in  a  certain 
action  for  partition  of  real  property,  now  pending  in  said  court,  wherein 

is  plaintiff,  and and  others  are  defendants;  and  it  appearing 

to  the  court  that  the  property  involved  in  said  action  can  not  be  equita- 
bly divided  into  the  requisite  number  of  shares,  the  said  court,  on  the 

day  of ,  18 — ,  caused  an  order  to  be  entered  directing  the 

said  referees  to  sell  the  said  premises.  Now,  if  the  said  (name  of  the 
referees),  shall  and  will  faithfully  discharge  their  duties  as  such  ref- 
erees, then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  virtue. 

Dated  this day  of ,  18—. 


principals. 

sureties. 

»  j 

73  Code,  Sec.  4262. 


§§  1199,    1200.]  PARTITION.  431 

The  security  in  the  foregoing  bond  approved  by  the  court  this • 

day  of  ,  18— 

,  judge,  etc. 

(The  sureties  should  justify  as  required  by  law.) 

§  1199.  Of  notice  of  sale. — The  same  notice  of  sale 
must  be  given  as  when  lands  are  sold  on  execution  by 
the  sheriff,  and  the  sale  must  be  conducted  in  like 
manner.74  The  notice  may  be  in  the  following  form: 

NOTICE  OF  REFEREE'S  SALE. 

By  virtue  of  an  order  of  sale  directed  to  the  undersigned  referees, 

from  the  clerk  of  the court  of  county,  Iowa,  on  a  decree 

obtained  in  said  court,  on  the day  of  ,  18 — ,  in  favor  of 

— ,  as  plaintiff,  and  against as  defendant,  for  the  partition  of 

the  real  estate  named  and  described  in  the  said  plaintiff's  petition,  we 
will,  on  the  —  —  day  of  —  — ,  18 — ,  offer  for  sale  to  the  highest  bidder 
the  following  real  estate,  to  wit  (here  insert  the  description  of  the  prop- 
erty) : 

Terms  of  sale  (here  state  terms,  as  fixed  by  court  in  order  of  sale) : 

Said  sale  to  take  place  in  front  of  the  court  house  door,  in ,  at  the 

hour  of  -  -  o'clock,  — .  M.,  of  said  day,  when  and  where  due  at- 
tendance will  be  given  by  the  undersigned. 

Dated  at ,  18—. 

Signatures 

of 
referees. 

§  1200.  The  report  of  sale  by  referees. — When  the 
sale  is  completed,  the  referees  must  report  their  pro- 
ceedings to  the  court,  with  a  description  of --the  different 
parcels  of  land  sold  to  each  purchaser,  and  the  price  bid 
therefor,  which  report  must  be  filed  with  the  clerk.73 

The  report  may  be  in  the  following  form : 

FORM  OF  REPORT  OF  REFEREE'S  SALE. 

Title,   ) 
Venue.  ) 

To  the  court: 

In  pursuance  of  an  order  of  this  court  in  the  above  entitled  cause, 

made  on  the day  of  —     — ,  18 — ,  we  (names  of  referees),  to  whom 

the  execution  thereof  was  confided,  do  report:  That,  having  caused 
four  weeks'  notice  of  the  time  and  place  of  sale  of  the  premises  men- 
tioned in  said  order  to  be  given,  by  posting  up  notices  thereof  at  three 

74  Code,  Sec.  4263.  75  Code,  Sec.  4265. 


432  PARTITION.  [§§1201,  1202. 

public  'places  in  the  county,  one  of  which  was  the  place  where  the 
last  district  court  was  held,  and  by  causing  two  publications  of  said 
notice  to  be  made  in  the  (name  of  newspaper),  a  newspaper  printed  in 

—  county,  where  said  premises  are  situated,  we  did,  on  the  — 
day  of  -  — ,  18 —  (that  being  the  time  specified  in  the  said  notice), 
attend  at  (the  place  of  sale),  the  place  therein  mentioned,  and  exposed 
the  said  premises  to  sale,  at  public  auction,  to  the  highest  and  beet 
bidder,  for  cash  (or  according  to  the  terms  fixed  by  the  court,  as  directed 
by  said  order). 

We  further  report  that  the  following  described  parcel  of  land,  to  wit 
(here  describe  the  tract  so'ld),  was  struck  off  to  (name  of  purchaser),  for 

the  sum  of dollars,  that  being  the  highest  and  best  bid  therefor; 

and  that  the  following  described  parcel  of  said  land,  to  wit  (describe  the 
next  tract  sold),  was  struck  off  to  (name  of  purchaser),  for  the  sum  o£ 

—  dollars,  that  being  the  highest  and  best  bid  therefor  (and  so  on 
with  each  parcel  sold). 

We  further  report  that  the  amount  of  each  of  said  bids  has  been 
paid  to  us  by  the  respective  purchasers  (or  report  according  to  the  direc- 
tions given  by  the  court  as  to  payments,  etc.). 

All  of  which  is  respectfully  submitted. 

Dated  this day  of  ,  18—. 

(Signatures  of  referees.) 

§  1201.  When  the  sale  may  be  set  aside. — The  sale 
may  be  set  aside  in  the  discretion  of  the  court,  and  where 
it  appears  that  the  property  was  sold  for  an  inadequate 
price,  that  alone  is  sufficient  reason  for  setting  it  aside; 
if  a  sale  is  disapproved,  the  money  paid  and  the  securi- 
ties given  must  be  returned  to  the  persons  respectively 
entitled  thereto.76 

§  1202.  Of  confirming  the  sale  and  of  the  convey- 
ance.— If  the  sale  be  approved  and  confirmed  by  the 
court,  an  order  must  be  entered  directing  the  referees  or 
any  two  of  them  to  execute  conveyances  in  pursuance 
of  such  sale,  but  no  conveyance  can  be  made  until  all  the 
money  is  paid  without  receiving  from  the  purchaser  a 
mortgage  of  the  land  so  sold  or  other  equivalent  secur- 
ity.77 The  deed  of  conveyance  may  be  in  the  following 
form: 

FORM  OF  CONVEYANCE  BY  REFEREES  IN  PARTITION. 

This  indenture,  made  the day  of ,  18 — ,  between  (names 

of  referees)  referees  of  the  first  part,  and of  the  second  part. 

TO  Loyd  v.   Loyd,   61-243;    Code,          n  Code   Sec.  4266. 
Sec.  4269. 


§  1203.]  PARTITION.  433 

Witnesseth,  That  whereas  in  an  action  of  partition  in  the  (name  of 
the  court),  wherein  —  —  was  plaintiff,  and  —  —  and  (others  named) 
were  defendants,  the  said  parties  of  the  first  part  were,  on  the  —  —  day 
of  —  — ,  18 — ,  duly  appointed  by  said  court  as  referees,  to  make  parti- 
tion of  the  following  described  real  estate,  to-wit  (give  a  full  description 
of  all  the  lands  subject  to  partition  in  the  case),  and  it  appearing  to  the 
court  that  the  said  property  could  not  be  equitably  divided  into  the 

requisite  number  of  shares,  the  court,  on  the day  of  — ,  18 — , 

caused  an  order  to  be  entered  directing  said  referees  to  sell  said  prem- 
ises on  the  following  terms,  to-wit  (here  recite  the  terms  of  the  sale  as 
fixed  by  order  of  the  court).  And  whereas,  in  pursuance  of  such  order, 
the  said  referees  caused  four  weeks'  notice  of  the  time  and  place  of  said 
sale  to  be  given,  by  posting  up  printed  (or  written)  notices  thereof  at 

three  public  places  in  -  county,  one  of  which  was  at  the  court 

house  in  ,  where  the  last  district  court  was  held,  and  by  causing 

two  publications  thereof  to  be  made,  in  the  (name  of  newspaper)  a 
newspaper  printed  in  said  county,  immediately  before  the  day  of  sale. 
And  whereas  the  said  referees  in  pursuance  of  said  notice  and  the  order 

of  the  court,  did  on  the day  of ,  18 — ,  at  the  hour  of 

o'clock  in  the  —  — noon,  at  the  (name  the  place  where  sale  was  held) 
expose  and  offer  for  sale  at  public  auction  the  aforesaid  real  estate,  and 
did  then  and  there  sell  at  public  auction  to  (name  of  purchaser)  the 
following  described  parcel  of  said  lands  (describe  the  tract  of  land)  for 

the  sum  of dollars,  he  being  the  highest  and  best  bidder  therefor. 

And  whereas,  the  said  —  — ,  party  of  the  second  part,  has  paid  to  the 
parties  of  the  first  part  the  said  sum  of  money  so  bid  as  aforesaid.  And 

whereas  on  the day  of ,  18 — ,  the  said  court  approved  and 

confirmed  said  sale,  and  by  order  directed  the  said  parties  of  the  first 
part  to  execute  to  the  said  party  of  the  second  part  a  conveyance  in  due 
form  of  law  for  the  said  parcel  of  land  so  sold  to  him,  as  aforesaid. 

Now,  therefore,  this  indenture  witnesseth,  that  in  consideration  of 

the  premises,  and  of  the  said  sum  of dollars,  so  bid  and  paid  by 

the  party  of  the  second  part,  in  conformity  with  the  law  and  in  obedi- 
ence to  the  orders  of  said  court,  we  (names  of  referees)  parties  of  the 
first  part,  do  by  these  presents  grant,  sell  and  convey  unto  the  said 

— ,  party  of  the  second  part,  and  to  his  heirs  and  assigns,  the  said 
parcel  of  real  estate  described  as  follows,  to-wit  (describe  the  tract 
sold);  to  have  and  to  hold  the  same  to  the  party  of  the  second  part, 
as  fully  and  absolutely  as  the  said  parties  of  the  first  part,  by  virtue 
of  the  premises,  might  and  could  sell  the  same. 

In  witness  whereof  we  have  hereunto  set  our  hands  the  date  first 
above  written. 

(Signatures  of  referees.) 
(Add  acknowledgment.) 

§  1203.  Effect  of  such  conveyance. — Conveyances 
executed  as  above  set  forth,  and  recorded  in  the  county 
where  the  premises  are  situated,  are  valid  against  all 
subsequent  purchasers  and  against  all  persons  interest- 

Vol.  11—28 


434  PARTITION.  [§§  1204,  1205. 

ed  at  the  time,  who  were  made  parties  to  the  proceedings 
as  required  by  law.78 

§  1204.  Of  investing  proceeds  of  sale.  — Where  the 
owner  of  any  share  sold  has  a  husband  or  wife  living,  and 
if  such  husband  or  wrife  do  not  agree  as  to  the  disposition 
that  should  be  made  of  the  proceeds  of  such  sale,  the 
court  must  direct  it  to  be  invested  in  real  estate  under 
the  supervision  of  such  person  as  it  may  appoint,  taking 
the  title  in  the  name  of  the  owner  of  the  share  sold  as 
aforesaid.79 

§  1205.  Of  costs  and  attorney's  fees,  etc. — All  cost 
of  the  proceedings  in  partition  must  be  paid  in  the  first 
instance  by  the  plaintiffs,  but  eventually  by  all  the  par- 
ties in  proportion  to  their  interest,  except  costs  which 
are  created  by  contest  in  the  action.80  The  contest  here 
spoken  of  relates  to  issues  made  by  the  pleadings  in  ref- 
erence to  the  respective  interests  of  the  parties.81  But 
if  the  action  is  one  to  determine  title  to  land  and  the  de- 
fense not  frivolous,  fees  can  not  be  taxed.82 

And  in  determining  whether  there  was  a  contest  re- 
specting the  extent  of  the  share  of  a  party,  the  court  will 
not  be  justified  in  taking  a  very  critical  view  of  the  pro- 
ceedings; the  question  is,  whether  there  was  practically 
a  contest,  and  if  the  parties  actually  engaged  in  such 
contest,  whether  regularly  raised  in  the  pleadings  or  not, 
that  fact  is  sufficient  to  control  the  question  of  costs.83 
When  a  decree  ordering  partition  or  sale  is  entered  there 
will  be  taxed  in  favor  of  plaintiff's  attorney,  as  costs  in 
the  case,  an  attorney's  fee,  not  exceeding  ten  per  cent,  on 
the  first  two  hundred  dollars  or  fraction  thereof,  for  the 
next  three  hundred  dollars  five  per  cent.,  for  the  next  five 
hundred  dollars  three  per  cent.,  and  for  all  excess 
over  the  said  amounts  one  per  cent,  of  the  value  of  the 
property  partitioned.  Such  value  to  be  determined  by 
the  court  or  the  appraisement,  or  by  the  sale  when  sale 

78  Code,  Sec.  4267.  si  Finch   v.    Garrett,    71   N.    W., 

™  Code,  Sec.  4268.  429. 

so  Code.  Sec.  4260;  see  Duncan  v.  82  McClain  v.  McClain,  52-272. 

Duncan,  63-150.  83  Duncan  v.  Duncan,  63-150. 


§§  1206,  120?.]  I'AiiTiTiON.  435 

is  ordered.84  Appraisers  and  referees  will  receive  such 
reasonable  compensation  for  their  services  as  the  court 
may  allow,  which  must>be  taxed  as  a  part  of  the  costs.85 
Attorney's  fees  will  not  be  taxed  in  such  cases  where 
there  is  a  contest.86  Where  the  issue  tried  was  whether 
defendant  owned  a  certain  interest  in  the  land  in  con- 
troversy, and  the  land  was  divided  by  the  parties  them- 
selves after  a  decree  giving  him  that  interest  plaintiff's 
attorneys  are  not  entitled  to  have  their  fees  taxed  as 
costs  as  authorized  in  an  action  for  partition.87 

§  1206.  Of  appeals. — An  appeal  may  be  taken  from 
a  decree  settling  the  rights  and  interests  of  the  parties; 
such  a  decree  is  in  that  respect  final.88  And  a  party 
who,  by  the  decree,  is  adjudged  to  have  no  interest  in 
the  property,  may  appeal  therefrom  as  a  final  judgment 
as  to  himself.89  And  where  an  appeal  is  taken  by  one 
of  several  defendants  it  will  be  dismissed  unless  the  co- 
defendants  are  served  with  notice  thereof.90 

§  1207.  Of  the  record. — In  this  action  there  should 
be  a  complete  record  made  of  the  entire  proceedings;  the 
necessity  of  this  is  apparent,  as  by  this  proceeding  the 
title  of  real  property  is  determined. 

As  to  approval  of  conveyances  and  especially  those 
made  in  vacation  see  "Judgments,"  sections  672,  673. 

*4  Code,  Sec.  4261.  ss  Williams  v.  Wells,  62-740. 

*s  Code,  Sec.  4272.  so  Ramsey  v.  Abrams,  58-512. 

se  Finch  v.  Garrett,  71  N.  W.,  429.  »o  Hunt  v.  Hawley,  70-183;  Code, 

ST  Everett  v.  Croskrey,  69  N.  W.,  Sec.  4111. 
1125. 


CHAPTER  LXXIV. 

OF  PRESUMPTION  OF  REGULARITY  OF  PROCEEDINGS  OF  OFFI- 
CERS AND  COURTS  OF  INFERIOR  JURISDICTION. 

Sec.  ^208.    When  proceedings  of  officers  and  courts  presumed  regular. 

Section  1208.  When  proceedings  of  officers  and 
courts  presumed  regular. — The  future  proceedings  of 
all  officers  and  of  all  courts  of  limited  and  inferior  juris- 
diction within  this  State  will,  like  those  of  general  and 
superior  jurisdiction,  be  presumed  regular,  except  in  re- 
gard to  matters  required  to  be  entered  of  record  and  ex- 
cept when  otherwise  expressly  declared  by  statute.1 
When  an  oath  to  a  pleading  is  administered  by  a  justice 
of  the  peace,  it  will  be  presumed  he  did  it  in  the  proper 
county;  and  when  the  record  of  a  sale  of  real  estate  of 
property  of  a  ward  by  his  guardian  discloses  nothing  to 
render  it  void,  it  will  be  presumed  valid.2  And  when 
the  jurisdiction  of  an  inferior  tribunal  has  once  attached, 
every  intendment  will  be  made  in  favor  of  the  validity  of 
its  proceedings.3  And  when  a  magistrate  takes  bail  in  a 
proceeding  before  him,  it  will  be  presumed  he  had 
authority  so  to  do.4  And  when  the  jurisdiction  of  a 
justice  is,  by  consent,  extended  to  a  sum  greater  than  one 
hundred  dollars,  in  the  absence  of  a  showing  to  the  con- 
trary, it  will  be  presumed  such  consent  was  given  before 

iCode,  Sec.   4648;    Richmond  v.  55-634;  Barney  v.  Chittenden,  2  G. 

Board  of  Supervisors,  70-627;  Purs-  Greene,  165;   Bayard  v.  Baker,  76- 

ley  v.  Hayes,  22-11;  Miller  v.  Cor-  220;    American    Emigrant    Co.    v. 

bin,  46-150;   State  v.  Lane,  26-223;  Fuller,  83-599;  see  Judgments  and 

Church  v.  Grossman,  49-444;  Good-  Appellate  Proceedings, 

rich    v.    Brown,    30-291;    Read    v.  2  Pursley  v.  Hayes,  17-310. 

Howe,  39-553;   Little  v.  Sinnett,  7-  s  Pursley  v.  Hayes,  17-310;  Hag- 

324;   State  v.  Berry,  12-58;    Shaw-  gerty  v.  Brown,  22-219;   see  No.  1 

han    v.    Loffer,    24-217;    Smith    v.  above. 

Eagle,  44-265;    Caughlin  v.  Blake,  *  State  v.  Hufford,  23-579. 

436 


§  1:208.]  REGULARITY    OF    PROCEEDINGS,    ETC.  -137 

the  suit  was  commenced.5  But  an  affidavit  that  a  per- 
son to  be  served  with  notice  can  not  be  found  in  the  State 
must  appear  of  record  to  confer  jurisdiction.6  The  su- 
preme court  will  presume  that  an  inferior  court,  in  mak- 
ing an  order  for  service  of  notice  in  a  matter  within  its 
jurisdiction,  complied  with  the  law.7  But  when  it  ap- 
pears on  the  face  of  the  record  that  an  officer  or  court 
has  not  jurisdiction,  the  presumption  of  the  statute  is 
rebutted.8 

6  Hodge  v.  Ruggles,  36-42.  i  Lees  v.  Wetmore,   58-170,  and 

a  Bradley  v.  Jameson,  46-68,  and      cases  cited, 
cases  cited.  «  Brown  v.  Davis,  59-641. 


CHAPTER  LXXV. 

OP    PROCEEDINGS    TO    REVERSE,    VACATE    OR   MODIFY    JUDG- 
MENTS,  OR    THE    PROCEEDINGS   OF    BOARDS,    OR 
INDIVIDUALS   ACTING   JUDICIALLY. 

Sec.  1209.    When  judgments  will  be  modified  or  vacated. 

1210.  Same — In  case  of  mistake,  neglect  or  omission  of  the  clerk, 

etc. 

1211.  Same — For   fraud,   etc. 

1212.  Same — For  erroneous  proceedings  against  a  minor  or  person 

of  unsound  mind.  etc. 

1213.  Same — For  the  death  of  one  of  the  parties  before  the  judg- 

ment is  rendered. 

1214.  Same — For  unavoidable  casualty  or  misfortune,  etc. 

1215.  Same — For  error  in  a  judgment  shown  by  a  minor,  etc. 

1216.  Of  equitable  proceedings. 

1217.  When  the  application  may  be  by  motion. 

1218.  When  the  application  must  be  by  petition. 

1219.  Same — When  grounds  discovered  after  term. 

1220.  Of  pleading,  practice,  etc. 

1221.  When  the  judgment  will  be  vacated. 

1222.  Of  injunction  to  suspend  proceedings. 

1223.  Of  judgment. 

Section  1209.  When  judgments  will  be  modified 
or  vacated. — In  addition  to  the  grounds  for  granting 
new  trials  heretofore  considered,1  the  district  court  in 
which  a  judgment  has  been  rendered  or  a  final  order 
made,  and  where  the  judge  of  said  court  has  made  a  final 
order,  has  power  after  the  term  at  which  said  judgment 
or  order  was  made,  to  vacate  or  modify  it  in  the  follow- 
ing cases: 

1.  For  mistake,  neglect,  or  omission  of  the  clerk,  OP 
irregularity  in  obtaining  the  same.2 

2.  For  fraud  practiced  in  obtaining  the  same.3 

i  See  chapter  on  New  Trials.               s  Code,    Sec.  4091;     Lumkin    v. 

a  Code,  Sec.  4091;  Larson  v.  Will-      Snook,  63-515;  Miller  v.  Albaugh, 

lams,  69  N.  W.,  441.                                  24-128;     Jones  v.    Leech,     46-186; 

438 


§§  1210,    1211.]      TO    REVERSE    OR   MODIFY    JUDGMENTS.  439 

3.  For  erroneous  proceedings  against  a  minor  or  per- 
son of  unsound  mind,  when  such  errors  or  condition  of 
mind  do  not  appear  in  the  record.4 

4.  When  one  of  the  parties  has  died  before  the  ren- 
dition of  the  judgment  or  the  making  of  the  order  if  no 
substitute  has  been  made  of  the  proper  representative 
before  the  rendition  of  the  judgment  or  order.5 

5.  For  unavoidable  casualty  or  misfortune,  prevent- 
ing the  party  from  prosecuting  or  defending  the  action.6 

6.  For  error  in  judgment  or  order  shown  by  an  infant 
within  twelve  months  after  arriving  at  full  age.7 

§  1210.  Same— In  case  of  mistake,  neglect  or 
omission  of  the  clerk,  etc. — When  a  default  and  judg- 
ment are  irregular  they  may  be  set  aside,  or  where  there 
has  been  a  mistake  of  the  clerk.8 

§  1211.  Same — For  fraud,  etc. — A  judgment  ob- 
tained by  fraud  practiced  by  the  successful  party  may  be 
vacated  even  though  an  application  for  a  new  trial  has 
been  previously  made  on  other  grounds,  and  in  such  an 
application  to  vacate  other  facts  than  those  connected 
with  the  cause  may  be  united,  when  they  constitute  a 
defense  to  the  claim  on  which  the  judgment  is  based.9 
So  a  judgment  obtained  by  fraud  against  a  school  dis- 
trict may  be  vacated  on  petition,  in  an  action  commenced 
within  one  year  after  judgment  was  rendered,  and  the 

Brownell  v.  Storm  Lake  Bk.,   63-  Roper,  62-603;  Snell  v.  Iowa  Home- 

754;     Dalhoff    v.  Keenan,    66-679;  stead    Co.,    67-405;     Browning    v. 

Brown  v.  Byam,  59-52;   Ind.  Dist.  Gosnell,  91-448;  Heathcote  v.  Has- 

v.  Schreiner,  46-172;  Rush  v.  Rush,  kins,  74-566;    Wishard  v.  McNeil, 

46-648,  and  48-701;  State  v.  Whit-  78-40;  White  v.  Gray,  92-525;  Cal- 

comb,  52-85;  Bennett  v.  Carey,  72-  lanan    v.    ^Etna    Nat'l    Bk.,    84-8; 

476;  Oliver  v.  Riley,  92-23;  Heath-  Ennis  v.  Fourth  Street  Bldg.  Assn., 

cote   v.    Haskins,    74-566;    Bennett  71  N.  W.,  426;  Mogelberg  v.  Clev- 

v.  Carey,  72-476;  Seddon  v.  State;  inger,  93-736. 

69  N.  W.,  671.  7  Code,   Sec.  4091;    Hunt  v.  Ste- 

*  Code,  Sec.  4091;  Bickel  v.  Ers-  vens,    26-399;     Dahms     v.   Alston, 

kine,  42-213;  Webster  v.  Paige,  54-  72-411;    Heathcote  v.  Haskins,  74- 

461.  570. 

s  Code,     Sec.     4091;     Oilman    v.  s  Morgan  v.  Small,  33-118;  Gold- 
Donovan,  53-362.  smith  v.  Clausen,  14-278;  Fuller  v. 

e  Code,    Sec.    4091;     Luscomb    v.  Stebbins,  49-376;  Shelley  v.  Smith, 

Maloy,  26-444;  Brewer  v.  Holborn,  50-543;  Partridge  v.  Barrow,  27-96; 

34-473;     Niagara    F.    Ins.    Co.    v.  Larson  v.  Williams,  69  N.  W.,  441. 

Rodecker,  47-162;    Irions   v.    Key-  » Reno  v.   Teagarden,  24-144. 
stone  Mfg.  Co.,  61-406;  Teabout  v. 


440  TO    REVERSE    OR   MODIFY   JUDGMENTS.    [§§  1212,    1213. 

fact  that  the  directors  have  levied  a  tax  to  pay  it  will  not 
estop  the  district10  Process  in  a  cause  served  on  the 
agent  of  an  insurance  company,  in  another  county  than 
the  one  where  the  loss  occurred,  is  not  such  fraud  as  will 
authorize  the  setting  aside  the  judgment,  even  though 
the  agent  on  whom  it  was  served  undertook  to  put  the 
notice  where  it  would  be  mailed  to  the  general  agent  of 
the  company,  and  it  never  reached  him,  and  he  was  ig- 
norant of  the  pendency  of  the  suit.11  A  decree  of  divorce 
obtained  by  fraud  may  be  set  asi'de,  notwithstanding  the 
rights  of  third  parties  have  intervened.12  And  a  petition 
for  a  new  trial  on  the  ground  of  fraud  need  not  allege  it 
in  terms;  it  will  be  sufficient  if  it  sets  out  facts  which 
in  law  amount  to  fraud.13  Fraud  and  negligence  of  the 
party's  attorney  in  not  interposing  a  valid  defense  is  no 
ground  for  vacating  a  judgment.14  Fraud,  in  the  former 
trial,  being  shown,  which  is  sufficient  to  constitute  rea- 
sonable grounds  to  believe  that  a  different  result  may  be 
anticipated  on  the  re-trial,  the  judgment  should  be  va- 
cated.15 

§  1212.  Same — For  erroneous  proceedings  against 
a  minor,  or  person  of  unsound  mind,  etc. — When  in 
an  action  against  a  minor  an  attorney  appeared  for  him 
and  was  appointed  guardian  ad  litem,  it  was  held,  in  the 
absence  of  a  showing  of  prejudice,  the  judgment  should 
not  be  set  aside  because  he  did  not  appear  by  his  regular 
guardian.16  A  minor  cannot  after  the  expiration  of  the 
year  question  the  correctness  of  a  judgment  against  him 
by  collateral  proceedings.17  Other  cases  in  which  it  was 
held  that  a  minor  was  entitled  to  a  new  trial.18 

§  1213.  Same — For  the  death  of  one  of  the  par- 
ties before  the  judgment  is  rendered. — Where  a  judg- 
ment is  rendered  in  favor  of  a  party  in  an  action  after 

10  Ind.  Dist.  v.  Schreiner,  46-172.         &  Le  Fever  v.  Stone,  55-49. 

11  Niagara  Ins.  Co.  v.  Roderick,          i*  Jones  v.  Leech,  46-186. 
47-162.  15  Brown  v.  Byam,  59-52. 

12  Rush  v.  Rush,  46-648;    Whit-          is  Webster     v.     Paige,     54-461; 
comb  v.  Whitcomb,  46-437;  State  v.  Bickel  v.  Erskine,  43-213. 
Whitcomb,  52-85.  17  Dahms  v.  Alston,  72-411. 

is  Heathcote  v.  Haskins,  74-570. 


§  1214.]  TO    REVERSE    OR    MODIFY    JUDGMENTS.  441 

his  death,  the  judgment  is  voidable  only,  and  will  be  con- 
sidered valid  unless  set  aside  as  provided  in  this  chap- 
ter, on  an  adjudication  that  there  is  a  valid  defense  to 
the  action.19 

§  1214.  Same — For  unavoidable  casualty,  or  mis- 
fortune, etc.— A  party  intending  to  appear  and  defend 
an  action,  but  being  prevented  by  illness  from  inter- 
posing his  defense,  which  is  a  valid  one,  is  entitled  to 
have  the  judgment  rendered  by  default  against  him  va- 
cated.20 But  the  mere  loss  of  a  note  constituting  a  de- 
fense, is  not  ground  for  vacating  a  judgment.21  And  the 
loss  of  all  the  written  evidence  in  a  case  on  which  it  was 
tried,  occurring  after  judgment,  and  appeal  to  the  su- 
preme court,  is  no  ground  for  a  new  trial,  as  it  may  on 
proper  application  be  substituted.22  A  married  woman, 
duly  served  with  an  original  notice,  is  presumed  in  the 
absence  of  evidence  to  the  contrary  to  understand'  its 
object  and  purpose,  and  how  the  action  will  affect  her 
rights,  and  if  she  neglects  to  appear  and  defend,  and  de- 
fault and  judgment  is  taken  against  her,  she  can  not 
have  it  set  aside  on  the  ground  of  unavoidable  casualty 
or  misfortune.23  If  the  defendant  is  misled,  by  an  error  in 
the  copy  of  the  notice  served  on  him,  in  regard  to  the  time 
of  the  commencement  of  the  term  of  court,  it  might  be  a 
sufficient  averment  of  casualty  or  misfortune,  but  in 
such  a  case,  where  it  appeared  he  had  taken  advice  as  to 
the  necessity  of  his  appearance,  owing  to  certain  alle- 
gations in  the  petition  inconsistent  with  ihe  notice,  it 
was  held  he  was  not  entitled  to  relief.24  Negligence  of 
one's  attorney  is  not  a  ground  for  a  new  trial.25  Xor  is 
the  absence  of  an  attorney  on  account  of  other  engage- 
ments.26 But  negligence  of  an  attorney  which  is  not 

19  Gilman  v.  Donovan,  53-362.  23  Teabout  v.  Roper,  62-603. 

20  Luscomb     v.     Moloy,     26-444;  24  Irions  v.   Keystone  Mfg.    Co., 
Brewer   v.    Holborn,    34-473;    Tea-  61-406;     Browning  v.   Gosnell,  91- 
bout  v.  Roper,  62-603.  448. 

21  Miller  v.  Albaugh,  24-128;  see  2.-.  Jackson   v.   Gould,   65   N.   W., 
Brewer  v.   Holborn,   34-473.  406;  Church  v.  Lacy,  71  N.  W.,  338; 

22  Loomis  v.  McKenzie,  48-416.  Mogelberg  v.  Clevinger,  93-736. 

2tf  Grove  v.  Bush,  86-94. 


4.12  TO    REVERSE    OR   MODIFY   JUDGMENTS.       [§§  1215, 121G. 

imputable  to  the  client  and  which  amounts  to  an  un- 
avoidable casualty  or  misfortune  may  be  ground  for 
granting  a  new  trial.27 

§  1215.  Same — For  error  in  a  judgment  shown  by 
a  minor  within  twelve  months  alter  arriving  at  full 
age.— All  of  the  cases  which  would  come  under  this  sub- 
division have  been  fully  treated  of  in  this  chapter  and  in 
the  chapter  on  new  trials.28 

§  1216.  Of  equitable  proceedings. — Courts  of  equi- 
ty have  jurisdiction  to  grant  relief  against  judgments 
obtained  by  fraud  in  cases  where  the  fraud  is  not  discov- 
ered until  the  expiration  of  a  year  from  the  time  of  the 
rendition  of  the  judgment.29  But  the  remedy  in  such 
cases  is  defined  by  the  statute,  and  relief  can  only  be 
granted  on  the  grounds  set  out  in  the  statute,  and  a 
promise  by  one  seeking  to  foreclose  a  mechanic's  lien, 
that  he  would  pay  the  claim  of  another  person,  holding 
a  prior  lien  on  the  premises,  if  the  latter  would  not  ap- 
pear and  assert  such  lien,  is  not  such  a  fraud  as  will 
authorize  the  setting  aside  of  the  judgment,  on  failure 
of  the  promisor  to  make  such  payment.30  A  judgment 
can  not  be  modified  in  equity  when  it  was  rendered  for 
more  than  the  amount  due  by  agreement  of  the  attorney 
of  the  party  thereto.31  When  a  judgment  on  a  note  was 
rendered  for  a  much  less  sum  than  was  really  due,  by 
reason  of  a  mistake  of  the  clerk  in  making  the  assess- 
ment, and  the  mistake  was  not  discovered  until  after 
the  time  to  correct  the  error  by  motion,  and  not  until  the 
case  had  been  appealed  to  the  supreme  court  and  there 
affirmed  on  motion  of  the  plaintiff,  the  appeal  not  hav- 
ing been  perfected,  and  judgment  rendered  for  the  same 
amount  as  in  the  court  below  it  was  held  the  party 
might  maintain  an  equitable  proceeding  in  the  court  be- 

27  Ennis  v.  Fourth  Street  Bldg.         so  Lumpkin    v.     Snook,     63-515; 
Assn.,  71  N.  W.,  426.  McConkey  v.   Lamb,  71-636;    Lar- 

28  See  chapter  on  New  Trials.  son   v.    Williams,   69   N.    W.,   441; 
2»  Dist.   Twp.   v.    White,   42-608;       Jackson  v.  Gould,  65  N.  W.,  406. 

Bowen  v.   The  Troy,  etc.,  31-460;          si  McConkey  v.  Lamb,  71-636. 
Clark  v.  Ellsworth,  84-525. 


§§  1217,    1218.]     TO    REVERSE    OR   MODIFY    JUDGMENTS.  443 

low  to  correct  the  error.32  A  judgment  or  decree  should 
not  be  set  aside  without  notice  to  the  adverse  party.33 
An  action  in  equity  to  set  aside  a  judgment  will  not  lie 
for  errors  of  the  court  which  might  have  been  corrected 
on  motion  or  on  appeal  if  they  do  not  affect  the  jurisdic- 
tion.34 

§  1217.  When  the  application  may  be  by  motion. 
—The  proceedings  to  correct  mistakes  or  omissions  by 
the  clerk,  or  irregularity  in  obtaining  the  judgment  or 
order,  must  be  by  motion  served  on  the  adverse  party  or 
on  his  attorney  in  the  action,  and  within  one  year,  and 
when  made  to  vacate  a  judgment  because  of  irregularity 
in  obtaining  it,  the  motion  must  be  made  on  the  second 
day  of  the  succeeding  term.35  A  mistake  by  the  clerk  in 
entering  a  judgment  may  be  corrected  by  motion  even 
after  payment  and  satisfaction  of  the  erroneous  judg- 
ment by  the  defendant.36  And  a  judgment  prematurely 
rendered  will  be  set  aside  on  motion.37  Courts  possess 
the  inherent  power  to  enter  judgments  nunc  pro  tune, 
and  the  lapse  of  time  will  not  bar  its  exercise,  but  sec- 
tion 4093,  of  the  code,  does"  not  apply  to  an  application 
for  a  nunc  pro  tune  order  for  the  entry  of  judgment  when 
that  duty  has  been  omitted  by  the  clerk.38  Nor  to  a  mo- 
tion to  correct  a  record  made  by  a  party  against  whom 
the  court,  by  mistake,  rendered  a  personal  judgment 
without  having  jurisdiction.39  Reference  is  made  to  the 
chapter  on  new  trials  for  the  form  of  the  motion  there 
given  which  may  be  used  with  such  modifications  as  may 
be  necessary.40 

§  1218.  When  the  application  must  be  by  peti- 
tion.— The  proceedings  to  obtain  a  new  trial  where  the 
defendant  is  served  by  publication,  have  already  been 
discussed.41  In  all  other  cases  mentioned  in  this  chap- 

32  Partridge  v.  Harrow,  27-96.  37  Huebner  v.  Farmers  Ins.  Co., 

ss  Throckmorton  v.  Stout,  3-580;  71-20. 

Keeney  v.  Lyon,  21-277;  Yetzer  v.  ss  Fuller  v.  Stebbins,  49-376. 

Martin,  58-612.  39  Shelley  v.   Smith,   50-543. 

s*  Geyer  v.  Douglass,   85-93.  *<>  Chapter  on  New  Trials. 

ss  Code,  Sec.  4093.  *i  Chapter  on  New  Trials. 

se  Goldsmith  v.  Clausen,  14-278. 


444  TO    REVERSE    OR    MODIFY   JUDGMENTS.  [§  1219. 

ter,  except  those  set  forth  in  the  preceding  section,  the 
party  seeking  to  reverse,  vacate  or  modif3r  a  judgment  or 
order  must  proceed  by  petition  verified,  which  must  set 
out  the  judgment  or  order  complained  of,  the  facts  or  er- 
rors constituting  a  cause  for  vacating  or  modifying  it,  and 
the  facts  constituting  a  defense  to  the  action,  if  the  party 
applying  was  a  defendant  in  the  judgment;  and  such  pe- 
tition must  be  filed  within  a  year  after  the  judgment  or 
order  was  made,  unless  the  party  instituting  the  pro- 
ceedings is  an  infant  or  person  of  unsound  mind,  in 
which  case  the  petition  may  be  filed  within  one  year 
after  the  disability  is  removed,  unless  the  proceedings 
are  in  equity.42  An  objection  that  an  application  to  va- 
cate a  judgment  does  not  state  the  facts  constituting  a 
defense,  and  is  otherwise  informal,  must  be  taken  ad- 
vantage of  by  motion  for  a  more  specific  statement,  or 
by  demurrer,  and  can  not  be  raised  on  the  trial  on  the 
merits,  or  on  an  appeal.43  The  provisions  of  section  4094, 
of  the  code,  are  directory  only,  and  a  petition  not  verified 
confers  jurisdiction  on  the  court  which  may  allow  the 
plaintiff  to  amend.44 

§  1219.  Same — When  grounds  discovered  after 
term. — Where  the  grounds  for  a  new  trial  could  not, 
with  reasonable  diligence,  have  been  discovered  until 
after  the  term  at  which  the  verdict,  report  of  referee  or 
decision  was  rendered  or  made,  the  application  must  be 
by  petition  filed,  as  in  other  cases,  and  not  later  than  the 
second  term  after  the  discovery,  and  within  one  year 
after  final  judgment  was  rendered.  The  notice  will  be 
served  and  returned,  and  the  defendant  held  to  appear 
as  in  an  original  action;  the  facts  stated  will  be  consid- 
ered denied  without  answer,  and  the  cause  tried  by  or- 

«  Code,  Sees.  4092,  4094;  Keeney  Nat'l  Bk.,  84-8;  Worth  v.  Wetmore, 

v.  Lyon,  21-277;  Arnold  v.  Hawley,  87-62;  Council  Bluffs  L.  &  T.  Co.  v! 

67-313;  Hintrager  v.  Sumbargo,  54-  Jennings,  81-470;  Walker  v.  Free- 

604;     Freeman    v.     Hart,     61-525;  love,  79-752:  Griffith  v.  Milwaukee 

Reno   v.   Teagarden,   24-144;    Dist.  Harv.  Co.,  92-634. 

Twp.    v.    White,    42-608;    Bond    v.  «  Turner  v.  First  Nat'l  Bk.,  30- 

Epley,  48-600;    Callanan  v.   ^Etna  191. 

4*  Rush  v.  Rush,  46-648. 


§  1220.]  TO    REVERSE    OR    MODIFY    JUDGMENTS.  445 

dinary  proceedings.45  The  petition  must  show  diligence 
to  discover  the  evidence  before  trial.40  The  petition  un- 
der this  section  must  be  filed  and  the  notice  served 
within  a  year  from  the  date  of  the  judgment,  and  the 
time  commences  to  run  from  the  date  of  the  decree  or 
judgment  in  the  trial  court.47 

§  1220.  Of  pleadings,  practice,  etc. — In  the  pro- 
ceedings by  petition  treated  of  in  this  chapter,  except 
as  otherwise  stated,  the  party  will  be  brought  into  court 
in  the  same  manner,  on  the  same  notice  as  to  time,  mode 
of  service  and  return,  and  the  pleadings,  issues,  and 
form  and  manner  of  trial  will  be  governed  by  the  same 
rules  and  all  proceedings  conducted  in  the  same  man- 
ner, as  near  as  may  be,  and  with  the  same  right  of  ap- 
peal, as  in  an  original  action  by  ordinary  proceedings, 
except  that  no  new  cause  of  action,  or  defense  can  be  in- 
troduced, and  the  cause  of  the  petition  must  be  first 
tried  and  tried  alone.  The  matters  stated  in  the  petition 
will  be  taken  as  denied  without  answer  and  the  issues 
will  be  tried  to  the  court.48  To  entitle  a  party  to  a  new 
trial  under  the  second  or  fifth  grounds  stated  in  code, 
section  4091,  he  must  prove  due  diligence  as  well  as  the 
existence  of  good  cause.49  Pending  an  application  for  a 
new  trial  made  subsequent  to  the  trial  term,  under  sec- 
tion 4092,  of  the  code,  it  .has  been  held  a  change  of  venue 
might  be  granted  for  cause  shown.50  But  it  is  held  other- 
wise, under  section  4091,  subdivision  4,  of  the  code.51  A 

45  Code,    Sec.   4092;    Richards   v.  Markley  v.  Owen,  71  N.  W.,  431: 
Nuckolls,   19-555;    First  Nat'l   Bk.  Mortell  v.  Friel,  85-738;  Kruidenier 
v.  Murdough,  40-26;  see  cases  last  v.  Shields,  77-504;  Wishard  v.  Mc- 
cited;  McConkey  v.  Lamb,  71-636;  Neil,    78-40;     Callanan    v.    y£tna 
Heathcote     v.     Haskins,     74-566;  Nat'l  Bk.,  84-8;    Lundon  v.  Wad- 
Council  Bluffs  L.  &  T.  Co.  v.  Jen-  dick,  67  N.  W.,  388. 

nings,  81-479;  Reed  v.  Lane,  65  N.  *»  Miller     v.     Albaugh,     24-128; 

W.,  380.  Stuckslager     v.     McKee,     40-212; 

46  stuckslager  v.  McKee,  40-212.  McConkey  v.  Lamb,  71-636;  Heath- 

47  Gray  v.  Coan,  48-424;  Bond  v.  cote    v.    Haskins,    74-566;    Council 
Epley,   48-600.  Bluffs    L.    &    T.    Co.    v.    Jennines, 

43  Code,  Sees.  4092,  4095;  Niagara  81-480;    Reed   v.   Lane,   65  N.  W., 

Ins.  Co.  v.  Rodecker,  47-162;   Car-  380. 

penter  v.  Brown,  50-451;  Brown  v.  so  Gibbs   v.   Buckingham,    48-96; 

Byam,  59-52;  Darrance  v.  Preston,  State  v.  Whitcomb,  52-85. 

18-396;    Bennett  v.   Carey,  72-476;  si  Oilman  v.  Donovan,  59-76. 
Mogelberg    v.     Clevinger,    93-736; 


44:6  TO    REVERSE    OR   MODIFY   JUDGMENTS.  [§  1220. 

petition  under  section  4092  for  a  new  trial,  which  states 
that  the  grounds  for  a  new  trial  could  not,  with  reason- 
able diligence,  have  been  discovered  before,  is  not  de- 
inurrable.52  After  a  cause  has  been  appealed  and  is 
pending  in  the  supreme  court,  the  court  below  can  not 
make  a  nunc  pro  tune  order  without  notice  to  the  other 
party.53  Where  an  insufficient  petition  for  a  new  trial 
is  filed  within  the  year,  and  after  the  expiration  of  the 
year  an  amended  petition  is  filed,  setting  up  facts  which 
would  be  sufficient,  it  was  held  not  to  entitle  the  party 
to  a  new  trial.54  A  motion  to  vacate  a  judgment  against 
a  garnishee  for  failure  to  answer,  when  he  had  notice  of 
the  time  and  place  when  and  where  his  answer  was  to  be 
taken,  may  be  made  after  the  term  at  which  judgment 
was  rendered.55  An  appeal  lies  from  a  proceeding  to  va- 
cate a  judgment  for  fraud.56  But  it  can  not  be  tried  de 
novo  in  the  supreme  court.57  Laches  can  not  be  imputed 
to  one  who  brings  his  action  within  the  time  required.58 
The  error  in  judgment  referred  to  in  subdivision  6,  in 
section  4091,  of  the  code,  is  error  of  law  only.59 

It  is  only  error  of  fact  committed  by  a  trial  court  that 
can  be  reviewed  by  a  writ  of  error  coram  nobis.60  An 
order  for  a  guardian's  sale  is  not  a  judgment,  and  the 
provisions  of  the  law  relating  to  reversing,  vacating  and 
modifying  judgments,  have  no  application  to-  such  a 
case.61  The  petition  in  cases  under  section  4092,  of  the 
code,  need  only  show  the  facts  on  which  the  new  trial  is 
asked,  as  in  other  cases.62  Under  the  law  providing  for 
new  trials  it  is  held  when  the  petition  is  based  on  the 
ground  of  accident  or  surprise,  petitioner  must  show 
that  he  could  not,  by  reason  of  the  accident  or  surprise, 
with  reasonable  diligence,  properly  defend  the  action, 
or  could  not  by  such  diligence  have  discovered  the  evi- 

52  Woodman  v.  Button,  49-398.  ss  jnd.  Dist.  v.  Schreiner,  46-172. 

ss  Turner  v.  First  Nat'l  Bk.,  30-  so  Bickel  v.  Erskine,  43-213. 

191.  60  McKinney   v.    Western    Stage 

5*Harnett  v.  Harnett,  59-401.  Co.,  4-420. 

BS  Thomas  v.  Hoffman,  62-125.  °i  Bunce   v.   Bun<ce,   59-533;     see 

56  Dryden  v.  Wyllis,  51-534.  Oilman  v.  Donovan,  59-76. 

57  ind.  Dist.  v.  Schreiner,  46-172.  ea  Stineman   v.   Beath,  36-73. 


§  1221.]  TO    REVERSE    OR   MODIFY   JUDGMENTS.  447 

dence  before  the  trial.63  Under  code,  section  4092,  what 
petitioner  did  or  what  facts  existed  to  show  diligence  is 
a  matter  of  evidence  that  need  not  be  stated  in  the  peti- 
tion, though  necessary  under  subdivision  7  of  section 
3755,  of  the  code.64  The  fact  that  an  appeal  is  pending 
can  not  be  pleaded  in  bar  of  a  proceeding  under  section 
4092,  of  the  code.65  Before  there  can  be  a  new  trial,  the 
court  must  make  an  order  granting  it,  which  should  be 
entered  of  record.66  If  a  party  has  knowledge  of  the 
error  complained  of  under  section  4094,  of  the  code,  prior 
to  the  expiration  of  the  year  from  the  date  of  rendition 
of  the  judgment,  and  fails  to  pursue  his  legal  remedy, 
he  will  not  be  given  relief  in  equity.67  Notice  of  the  mo- 
tion to  set  aside  the  judgment  should  always  be  given 
the  adverse  party.68  And  the  court  in  which  a  judgment 
is  rendered  may,  in  a  proceeding  to  set  it  aside,  ascertain 
if  service  was  made  on  the  defendant.69 

§  1221.  When  the  judgment  will  be  vacated. — The 
judgment  will  not  be  vacated  on  motion  or  petition  until 
it  is  determined  that  there  is  a  cause  of  action  or  defense 
to  the  action  in  which  the  judgment  was  rendered,  and, 
when  a  judgment  is  modified,  all  liens  and  securities  ob- 
tained under  it  must  be  preserved  to  the  modified  judg- 
ment; but  a  judgment  will  not  be  set  aside  at  the  in- 
stance of  one  as  to  matters  which  he  might  have  con- 
tested but  did  not.70  Nor  will  it  be  set  aside  at  the  in- 
stance of  one  not  a  party.71  And  acting  within  the  stat- 
ute, it  is  a  matter  of  discretion  with  the  court  to  set  aside 
its  own  judgments.72  The  court  may  first  try  and  decide 
upon  the  grounds  to  vacate  or  modify  a  judgment  or 
order  before  trying  or  deciding  upon  the  validity  of  the 

es  Richards  v.  Nuckolls,  19-555.  ™  Code,     Sec.    4096;    Piggott    v. 

e*  Wooman  v.  Button,  49-398;  see  Addicks,  3  G.  Gr.,  427;   Russell  v. 

Cohal  v.  Allen,  37-449.  Pottawatamie       County,       29-256; 

es  Cook  v.  Smith,  58-607.  Coleman  v.   Case,   66-534;    Morton 

ee  Brown  v.  Byam,  59-52.  v.  Coffin,  29-235;  McName  v.  Mal- 

67  Freeman  v.  Hart,  61-525.  vin,  56-362;  Wishard  v.  McNeil,  78- 

es  See  cases  cited  to  Sec.  1216.  40. 

en  Newcomb    v.    Dewey,    27-381;  71  Wright  v.  Keithler,  7-92. 

State  Ins.  Co.  v.  Granger,  62-272.  72  Pailey  v.  Hearn,  3  G.  Gr.,  415. 


448  TO    REVERSE    OR    MODIFY   JUDGMENTS.  [§1°21. 

defense,  or  cause  of  action.73  Or  it  may  first  try  the 
validity  of  the  defense,  and,  if  it  be  found  insufficient,  the 
application  must  be  overruled.74  The  court,  without  a 
jury,  is  to  decide  upon  the  question  of  granting  a  new 
trial.75  If  the  court  finds  that  there  is  reasonable  ground 
to  believe  that  a  different  result  will  be  reached  if  a  new 
trial  is  ordered,  that  is  a  sufficient  showing  of  a  valid  de- 
fense.76 The  judgment  will  not  be  vacated  until  a  recital 
is  had.77  The  petition  for  a  new  trial  may  be  in  the  fol- 
lowing form: 

FORM  OF  PETITION  TO  VACATE  OR  MODIFY  A  JUDGMENT. 

Title, 
Venue. 

The  plaintiff  states:  That  on  the  —  —  day  of  —  — ,  18 — ,  the  de- 
fendant obtained  a  judgment  in  this  court,  in  an  action  then  pending, 
wherein  he  was  plaintiff  and  this  plaintiff  was  defendant,  for  the  sum 

of  -    dollars  and  costs  (if  the  judgment  was  not  for  money  then 

state  its  nature) ;  that  there  was  and  is  error  in  said  judgment  in  this 
(here  state  the  errors  complained  of,  as  that  the  defendant  was  an  infant 
and  no  defense  by  guardian  was  made  for  him,  or  as  the  case  may  be) ; 
that  this  plaintiff,  at  the  time  of  the  rendition  of  said  judgment,  had,  and 
still  has,  a  good  defense  to  the  whole  (or  a  part),  of  said  judgment  in  this 
(here  set  out  defense  as  would  be  done  in  an  action  before  judgment), 
A  copy  of  the  record  entry  of  said  judgment  is  hereto  attached,  marked 
"A,"  and  made  a  part  hereof.  Wherefore  plaintiff  prays  that  said  judg- 
ment be  vacated  (or  modified,  as  the  case  may  be),  at  the  costs  of  the 
defendant  herein. 

,  attorney  for  plaintiff. 

(Add  verification.) 

If  the  petition  is  based  on  the  ground  of  accident  or 
surprise,  the  above  form  may  be  used,  making  the  neces- 
sary changes  therein,  and  alleging  that  the  plaintiff 
could  not,  with  reasonable  diligence,  have  discovered  the 
testimony  before  the  former  trial,  or,  in  case  of  accident, 
setting  out  the  facts  fully  which  rendered  it  impossible 
for  him  to  make  his  defense  therein. 

73  Code,  Sec.  4097;   Niagara  Ins.          75  Carpenter    v.    Brown,    50-451; 
Co.  v.  Rodecker,  47-162;  Worth  v.  Bennett  v.  Carey,  72-476. 
Wetmore,  87-62.  70  Clark  v.  Ellsworth,  84-525. 

74  Miracle  v.  Lancaster,  46-179.  77  Stanbrough  v.  Cook,  83-705. 


§§  1222,   1223.]     TO    REVERSE    OR    MODIFY    JUDGMENTS.  449 

§  1222.     Of    injunction  to    suspend  proceedings.— 

The  party  seeking  to  vacate  or  modify  a  judgment  or 
order,  may  have  an  injunction,  suspending  proceedings 
on  the  whole  or  a  part  thereof,  which  may  be  granted  by 
the  court  or  judge  upon  its  being  rendered  probable  by 
affidavit  or  verified  petition,  or  by  exhibition  of  the 
record,  that  the  party  is  entitled  to  have  such  judgment 
or  order  vacated  or  modified.78 

§  1223.  Of  judgment. — In  all  cases  of  affirmance  of 
the  former  judgment  or  order,  when  the  proceedings 
thereon  have  been  suspended,  judgment  must  be  ren- 
dered against  the  plaintiff  in  error  for  the  amount  of  the 
former  judgment,  interest  and  costs,  together  with  dam- 
ages at  the  discretion  of  the  court,  not  exceeding  ten  per 
cent,  on  the  amount  of  the  judgment.79 

TS  Code,  Sec.  4098.  79  Code,  Sec.  4099. 


Vol.  II-?3 


CHAPTER  LXXVI. 

OF  QUO  WARRANTO. 

Sec.  1224.  Object  and  purpose  of  the  writ 

1225.  When  the  action  will  lie. 

1226.  When  it  will  not  lie. 

1227.  Of  the  commencement  and  prosecution  of  the  action. 

1228.  Of  pleading  and  practice. 

1229.  Of  the  petition. 

1230.  Of  the  trial  and  judgment. 

1231.  Of  the  power  of  the  court. 

Section  1224.  Object  and  purpose  of  the  writ. — At 
common  law  the  writ  issued  in  the  name  of  the  State 
against  any  person  or  corporation  usurping  any  fran- 
chise or  office,  commanding  the  sheriff  to  summon  the 
defendant  to  appear  before  the  court  from  whence  the 
writ  was  issued,  at  the  time  and  place  therein  fixed,  and 
to  show  by  what  authority  or  warrant  he  claimed  the 
franchise  or  office  mentioned  in  the  writ.1 

This  proceeding  is  no  longer  in  use  in  Iowa,  but  is  suc- 
ceeded by  an  information  of  the  nature  of  quo  warranto. 

§  1225.  When  the  action  will  lie. — It  is  an  action 
by  ordinary  proceedings  brought  in  the  name  of  the  State 
as  plaintiff  in  the  following  cases:  Against  any  person 
unlawfully  holding  or  exercising  any  public  office  or 
franchise  within  the  State,  or  any  officer  in  any  corpora- 
tion created  by  the  State;  or  against  any  public  officer, 
who  has  done  or  suffered  any  act  which  works  a  forfeit- 
ure of  his  office;  or  against  any  person  acting  as  a  cor- 
poration without  being  authorized  by  law;  or  against 
any  corporation  doing  or  omitting  acts  which  amount  to 

i2  Bouv.  Law  Die.,  14th  Ed.,  per.  405:   Tommonwealtti  v.  Dearborn, 
15  Mass.,  125. 
450 


§§  1226.  1227.]  QUO  WABHAXTO.  451 

a  forfeiture  of  their  rights  and  privileges  as  a  corpora- 
tion, or  exercising  powers  not  conferred  by  law;  or 
against  any  person  claiming  under  letters  patent 
granted  by  the  proper  authorities  of  the  State  for  the 
purpose  of  annulling  or  vacating  the  same  as  having 
been  obtained  by  fraud,  or  mistake,  or  ignorance  of  a 
material  fact;  or  where  the  defendants  have  done  or 
omitted  an  act  in  violation  of  the  terms  and  conditions 
on  which  the  letters  were  granted,  or  have  by  any  other 
means  forfeited  the  interest  acquired  under  the  same.2 
It  lies  to  determine  the  rights  to  a  municipal  office.3 
It  lies  where  the  office  or  franchise  is  being  usurped.4 
It  lies  to  determine  the  right  to  preside  over  the  proceed- 
ings of  a  city  council.5  It  lies  to  determine  the  right  to 
an  office  where  the  one  claiming  the  same  wras  elected  or 
appointed.6  To  determine  the  right  of  an  insurance  com- 
pany to  do  business.7 

§  1226.  When  it  will  not  lie. — This  action  will  not 
lie  to  annul  a  city  ordinance  passed  in  the  irregular  and 
improper  exercise  of  a  power  conferred  by  law.8 

§  1227.  Of  the  commencement  and  prosecution  of 
the  action. — This  action  may  be  commenced  by  the 
county  attorney  at  his  discretion,  and  must  be  so  com- 
menced when  directed  by  the  governor,  the  general  as- 
sembly or  a  court  of  record.9  If  the  county  attorney  on 
demand  neglect  or  refuse  to  commence  the  action,  any 
citizen  of  the  State  having  an  interest  in  the  question 
may  apply  to  the  court  in  which  the  action  is  to  be  com- 
menced, or  to  the  judge  thereof,  for  leave  to  do  so,  and 
upon  obtaining  such  leave  may  bring  and  prosecute  the 

2  Code,  Sec.  4313;  State  v.  Simp-      State  v.  Omaha  &  C.  B.  R.  &  B. 
kins,   77-676;    State  v.   Fidelity  &      Co.,  91-517. 

Casualty     Co.,     77-648;     State     v.  s  Cochran  v.  McCleary,  22-75,  90. 

Omaha  &  C.  B.  R.  &  B.  Co.,  91-  e  state    v.    Minton,    49-591;     Ex 

517;  Dickerson  v.  Cass  County  Bk.,  parte  Stahl,  16-369;  State  v.  Simp- 

64  N.  W.,  395;  State  v.  Gaston,  79-  kins,  77-676. 

457;  State  v.  Powell,  70  N.  W.,  592.  ~  State    v.  Fidelity    &    Casualty 

3  State  v.  Funck,  17-365.  Co.,  77-648. 

*  Cochran  v.  McCleary,  22-75,  90;          s  state  ex  rel.  v.  City  of  Lyons, 
Desmond  v.  McCarthy,  17-525,  527;      31-432. 

»  Code,  Sec.  4315. 


452  QUO  WAKRAXTO.  [§  1228. 

action  to  final  judgment.10  Whether  the  party  has  such 
an  interest  that  he  may  maintain  this  action  is  a  ques- 
tion to  be  determined  in  the  first  place  by  the  district 
court  before  the  action  has  been  commenced,  and  it  has 
been  held  in  a  proceeding  to  determine  the  validity  of  a 
statute  extending  the  limits  of  a  city  that  a  non-resident 
owner  of  lands  within  the  extended  city  limits  had  suf- 
ficient interest  to  maintain  the  action.11 

If  the  action  is  brought  upon  the  relation  of  a  private 
individual  that  fact  must  be  stated  in  the  petition,  and 
the  order  allowing  him  to  prosecute  may  require  that 
he  should  be  responsible  for  costs  in  case  they  are  not 
adjudged  against  the  defendant;  in  other  cases  the  pay- 
ment of  costs  will  be  regulated  by  the  same  rule  as  ap- 
plies in  criminal  actions.12  When  the  defendant  is  hold- 
ing an  office  to  which  another  is  claiming  the  right,  the 
petition  must  set  forth  the  name  of  such  claimant,  and 
the  trial  must,  if  practicable,  determine  the  rights  of  the 
contesting  parties.13  When  several  persons  claim  to  be 
entitled  to  the  same  office,  or  franchise,  the  petition  may 
be  filed  against  all,  or  any  portion  thereof,  in  order  to  de- 
termine their  respective  rights  thereto.14  And  under 
this  section  procedure  may  be  had  against  one  claiming 
to  be  entitled  to  an  office,  though  he  be  not  in  possession 
of  it15 

§  1228.  Of  pleading  and  practice. — In  this  action 
there  can  be  no  joinder  of  any  other  cause  of  action,  nor 
any  counter  claim.16  The  petition  must- contain  a  plain 
statement  of  the  facts  which  constitute  the  grounds  of 
the  proceeding,  and,  with  the  notice  and  all  subsequent 
proceedings  and  pleadings,  must  conform  to  the  rules 
given  for  procedure  in  civil  actions.17  If  the  action  is  to 
contest  the  right  of  certain  persons,  claiming  to  be  a  cor- 
poration, from  acting  as  such,  it  must  be  against  the  in- 

10  Code,  Sec.  4316;  Scott  v.  Clark,  "Code,  Sec.  4320;    see  Cochran 
1-70.  v.  McCleary,  22-75. 

11  State  v.  Des  Moines,  65  N.  W.,  «  state  v.  Van  Beck,  87-569. 
818.  i6  Code,  Sec.  4314. 

12  Code,  Sec.  4318.  "  Code,  Sec.  4317. 

is  Code,  Sec.  4319.  .  - 


§  1229.]  QUO  WARRANTO.  453 

dividuals  themselves,  and  not  against  the  corporation. 
When  a  corporation  is  brought  in  by  its  corporate  name, 
its  existence  is  admitted.18 

Where  the  office,  for  the  recovery  of  which  the  action 
is  brought,  is  one  to  which  no  compensation  attaches, 
the  court  may  dismiss  the  suit  at  the  time  of  trial,  if  it  ap- 
pears that  the  term  of  office  contested  for  has  expired.19 

It  seems  where  one  persists  in  exercising  an  office  or 
franchise,  having  no  right  to  it,  and  attempts  forcibly  to 
insist  upon  so  exercising  it,  which  results  in  the  inter- 
ruption of  public  business,  and  is  a  detriment  to  the 
public  interest,  that  the  injunction  allowed  in  law  ac- 
tions will  be  allowed  as  auxiliary  to  the  main  proceed- 
ing.20 

§  1229.  Of  the  petition.— The  petition  in  this  ac- 
tion may  be  in  the  following  form: 

FORM  OF  PETITION  BY  COUNTY  ATTORNEY. 

Title, 
Venue. 

— ,  county  attorney  of county,  of  the  State  of  Iowa,  states 

to  the  court  (or,  "on  the  relation  of  A  B,  states,"  etc.) : 

That  the  defendant  is  unlawfully  holding  (or  exercising)  the  office 
of  (name  of  the  office,  or,  if  a  corporation  is  defendant,  that  fact  and  the 
nature  and  extent  of  their  powers  should  be  shown,  and  the  further  facts 
showing  that  the  defendant  has  done  or  omitted  acts  which  amount  to  a 
surrender  or  forfeiture  of  its  franchises,  or  that  it  has  committed 
some  act  not  conferred  upon  it  by  law,  or  that  the  defendant  is 
acting  and  exercising  powers  as  a  corporation,  without  being  authorized 
by  law  to  do  so),  in  this,  namely  (here  state  the  facts  showing  that  the 
defendant  is  not  entitled  to  hold  or  exercise  the  office,  or,  when  he  is  an 
officer,  state  the  facts  which  show  he  is  exercising  some  power  or  fran- 
chise not  belonging  to  his  office,  or  that  he  has  done  or  suffered  some  act 
which  works  a  forfeiture  of  his  office). 

Wherefore  the  plaintiff  prays  that  the  defendant  be  required  to  show 
by  what  warrant  or  authority  he  holds  (or  exercises)  said  office  (or 
powers  or  franchise,  as  the  case  may  be),  and  that  judgment  be  ren- 
dered that  the  said  defendant  be  ousted  and  altogether  excluded  from 
such  office  (or  franchise  or  privileges),  and  also  that  he  pay  the  costs 
of  this  proceeding. 

,  county  attorney  of  ,  Iowa. 

is  State  v.   The  Ind.   Dist.,   etc.,          20  Cochran    v.    McC^eary,    22-75; 
44-227.  State  v.  Funck,  17-3G5. 

m  State  v.  Porter.  58-19;  State  v. 
Powell,  70  N.  W.,  592. 


454  QUO  WARRANTO.  [§  1230. 

Where  the  action  is  by,  or  on  the  relation  of,  a  private 
person,  verification  to  the  petition  should  be  as  follows: 


State  of  Iowa, 
County 


1  ss. 


I, ,  being  duly  sworn,  say  that  I  am  the  plaintiff  (or  relator)  in 

the  foregoing  petition;   that  I  have  heard  the  same  read;    that  the  state- 
ments thereof  are  true,  as  I  believe. 

(Add  certificate  of  officer.) 

§  1230.  Of  the  trial  and  judgment. — Proceedings  on 
the  trial  will  be  the  same  as  in  civil  actions.21  If  by  the 
judgment  the  defendant  is  found  guilty  of  unlawful  hold- 
ing or  exercising  any  office,  franchise  or  privilege,  or  if 
a  corporation  be  found  to  have  violated  the  law  by  which 
it  holds  its  existence,  or  is  acting  contrary  to  law,  or  in 
any  manner  to  have  done  acts  which  amount  to  a  surren- 
der or  forfeiture  of  its  privileges,  judgment  will  be  ren- 
dered ousting  the  defendant  and  excluding  him  from 
such  office,  franchise  or  privilege,  and  also  that  he  pay 
the  costs  of  the  proceeding.22 

If  the  defendant  be  found  to  have  exercised  merely  cer- 
tain individual  powers  and  privileges  to  which  he  was 
not  entitled,  the  judgment  will  be  the  same  as  above 
stated,  but  only  in  relation  to  particulars  in  which  ho  is 
thus  exceeding  the  lawful  exercise  of  his  rights  and  priv- 
ileges.23 

The  person  in  whose  favor  such  judgment  is  rendered 
will  proceed  to  exercise  the  functions  of  the  office  after 
he  is  qualified  as  provided  by  law.24  And  after  such 
judgment  the  court  will  order  the  defendant  to  deliver 
over  all  books  and  papers  in  his  custody,  or  under  his 
control,  belonging  to  said  office.25  The  claimant  may, 
at  any  time  within  one  year  thereafter,  bring  action 
against  the  defendant  to  recover  the  damages  he  has 
sustained  by  reason  of  the  act  of  the  defendant.26  Where 

21  Code,    Sec.    4317;  Cochran    v.          24  Code,  Sec.  4321. 
McCleary,  22-75.  25  Code,  Sec.  4322. 

22  Code,  Sec.  4324,  ze  Code,  Sec.  4323. 

23  Code.  Sec.  4325. 


§  1^31.]  QUO  WARBAXTO.  455 

judgment  is  rendered  against  a  pretended,  but  not  real, 
corporation,  the  costs  may  be  collected  from  any  person 
who  has  been  acting  as  an  officer  or  proprietor  of  such 
pretended  corporation.27 

If  a  corporation  is  ousted  and  dissolved  by  proceeding 
of  this  kind,  the  court  must  appoint  three  disinterested 
persons  as  trustees  of  the  creditors  and  stockholders,28 
who  must  enter  into  a  bond  in  such  penalty  and  with 
such  security  as  the  court  approves,  conditioned  for  the 
faithful  discharge  of  their  trust;29  and  action  may  be 
brought  on  such  bond  by  any  person  injured  by  the  neg- 
ligence or  wrongful  acts  of  the  trustees  in  the  discharge 
of  their  duties.30 

The  trustees,  as  soon  as  practicable  after  their  ap- 
pointment, must  make  and  file  an  inventory  in  the  office 
of  the  clerk  of  the  court,  which  must  be  sworn  to  by  each 
of  them,  of  all  the  effects,  rights  and  credits,  which  come 
to  their  possession  or  knowledge.31 

They  must  sue  for  and  recover  the  debts  and  property 
of  the  corporation,  and  are  responsible  to  creditors  and 
stockholders,  respectively,  to  the  extent  of  the  effects 
which  come  into  their  hands.32 

When  a  judgment  of  ouster  is  rendered  against  a  cor- 
poration, on  account  of  misconduct  of  the^corporation,  or 
the  directors  or  officers  thereof,  such  officers  will  be 
severally  and  jointly  liable  to  any  one  injured  thereby.33 

§1231.  Of  the  power  of  the  court. — If  any  person 
without  good  reason  refuse  to  obey  any  order  of  the 
court  in  this  proceeding,  he  will  be  guilty  of  contempt 
of  court,  and  fined  in  any  sum  not  exceeding  five  thou- 
sand dollars,  and  imprisonment  in  the  county  jail  until 
he  comply  with  said  order;  and  he  will  be  liable  for  the 
damages  resulting  to  any  person  on  account  of  his  re- 
fusal to  obey  such  order.34 

ZT  Code,  Sec.  4326.  «i  Code,  Sec.  4333. 

28  Code,  Sec.  4328.  32  Code,  Sec.  4334. 

2-->  Code,  Sec.  4329.  33  Code,  Sec.  4327. 

so  Code,  Sec.  4330.  84  Code,  Sec.  4335. 


CHAPTER  LXXVIL 

OF  RECEIVERS. 

Sec.  1232.  An  executive  officer. 

1233.  When  power  should  be  exercised. 

1234.  Appointed  in  any  civil  action. 

1235.  Not  appointed  for  benefit  of  strangers. 

1236.  Of  the  application. 

1237.  Of  notice  of  the  application. 

1238.  Of  the  petition. 

1239.  In  cases  of  partnerships. 

1240.  In  cases  of  mortgaged  property. 

1241.  In  cases  of  corporations. 

1242.  Rights   of  third   parties  protected. 

1243.  His   qualification. 

1244.  His  powers  and  duties. 

1245.  His   liability. 

1246.  His  compensation. 

1247.  He  can  not  be  garnished. 

1248.  Of  appeal. 

Section  1232.  An  executive  officer. — A  receiver  is 
an  indifferent  person  between  the  parties  to  a  cause,  ap- 
pointed by  the  court  to  receive  and  preserve  the  property 
in  litigation  pendente  lite,  when  it  does  not  seem  reason- 
able to  the  court  that  either  party  should  hold  it.1  He 
is  an  officer  of  the  court  and  the  property  entrusted  to 
his  care  is  regarded  as  being  in  custodia  legis,  for  the 
benefit  of  whoever  may  finally  establish  title  thereto.2 

§  1233.  When  power  should  be  exercised. — The 
power  to  appoint  a  receiver  is  an  extraordinary  one,3 

1  High    on    Receivers,     Sec.     1;  Hunt  v.  Wolfe,  2  Daly,  303;  Battle 
Booth     v.    Clark,     17    How.,    322;  v.  Davis,  66  N.  C.,  252;   Hooper  v. 
Waters   v.   Carroll,    9    Yerg.,    102;  Winston,   24    111.,   353;    Ellicutt   v. 
Baker  v.  Administrator  of  Bacus,  Warford,  4*Md.,  80;  Kaiser  v.  Kel- 
32  111.,  79;  Devendorf  v.  Dickinson,  ler,  21-95. 

21  How.,  275.  3  Crawford  v.  Ross,   39  Ga.,  44; 

2  Booth  v.  Clark,  17  How.,  322;      Furlong  v.  Edwards,  3  Md.,  112. 

456 


§  1234.]  RECEIVERS.  457 

and  always  to  be  exercised  with  the  utmost  caution  and 
only  when  the  court  is  satisfied  that  it  is  necessary  to 
prevent  manifest  wrong  and  injury.4  But  it  need  not 
appear  that  the  party  applying  for  a  receiver  is  entitled 
to  recover  before  such  appointment  can  be  made.  It  is 
sufficient  if  it  appear  from  the  showing  made  that  he  has 
a  probable  right  to  recover,5  and  a  receiver  will  not  be 
appointed  unless  a  showing  is  made  which  clearly  brings 
the  case  within  the  statute.6 

Xor,  as  a  general  rule,  will  a  receiver  be  appointed  at 
the  instance  of  one  tenant  in  common,  who  is  out  of  pos- 
session, against  one  who  is  in  possession,  under  such  cir- 
cumstances that  he  is  not  liable  to  account.7 

§  1234.  Appointed  in  any  civil  action. — At  com- 
mon law  the  power  to  appoint  receivers  was  vested  in 
courts  of  equity,8  but  under  our  statute  a  receiver  may 
be  appointed  in  any  civil  action  or  proceeding,  whether 
legal  or  equitable,9  where  a  proper  case  is  made,  and  on 
petition  of  either  party  to  the  action,  wherein  he  shows 
that  he  has  a  probable  right  to,  or  interest  in,  any  prop- 
erty which  is  the  subject  of  the  controversy,  and  that 
such  property,  or  its  rents  or  profits,  are  in  danger  of 
being  lost  or  materially  injured  or  impaired;  and  on 
such  notice  to  the  adverse  party  as  the  court  or  judge 
shall  prescribe,  the  court,  or,  in  vacation,  the  judge 
thereof,  if  satisfied  that  the  interests  of  one  or  both  par- 
ties will  be  thereby  promoted  and  the  substantial  rights 
of  neither  unduly  infringed,  may  appoint  a  receiver.10 
Where  an  assignee  for  the  benefit  of  creditors  is  enjoined 
from  acting,  a  receiver  may  be  appointed  to  take  charge 
of  the  property.11 

*  Crawford  v.  Ross,  39  Ga.,  44.  i  Varnum  v.  Leek,  65-753. 

s  Code,     Sec.     3822;     The     Des  s  High  on  Receivers,  Sec.  40. 

Moines    Gas    Co.    v.    West,    44-25;  »  Code,  Sec.  3822;  Jones  v.  Graves, 

Cofer  v.  Echerson,  6-505;  Saylor  v.  20-596;     Rabb  v.   Albright,   93-50; 

Mockbie,  9-211;  Clark  v.  Raymond,  Smith   v.   Dayton,   62  N.   W.,   650; 

84-251;    Dickerson  v.  Cass  County  Dickerson  v.  Cass  County  Bk.,  64 

Bk.,  64  N.  W.,  395.  N.  W.,  395. 

6  Sleeper  v.  Iselin,  59-380;   Wai-  '      10  Code,   Sec.   3822. 

lace  v.  Pierce- Wallace  Pub.  Co.,  70  n  Walker  v.  Stone,  70-103. 
N.  W.,  216. 


458  RECEIVERS.        [§§  1235,  1236,  1237. 

§  1235.  Not  appointed  for  benefit  of  strangers.— 
The  party  asking  for  the  appointment  of  a  receiver  must 
have  an  existing  interest  in  the  property  in  controversy. 

If  he  has  parted  with  his  interest  the  court  will  refuse 
to  make  the  appointment,  even  though  the  offense  com- 
plained of  was  committed  at  a  time  when  he  had  an  in- 
terest in  the  subject-matter.12  So,  a  stranger  to  the  suit 
or  proceeding,  and  having  no  interest  therein,  can  not 
procure  the  appointment  of  a  receiver.13 

§  1236.  Of  the  application. — The  application  for 
the  appointment  of  a  receiver  may  be  embodied  in  the 
original  petition  in  the  cause,  or  it  may  be  in  an  amend- 
ment to  it  setting  forth  facts  which,  with  those  stated  ;n 
the  original  petition,  are  sufficient.14 

If  it  is  in  a  case  where  no  notice  is  required.15  the  ap- 
plication is  usually  heard  on  the  petition  of  plaintiff  and 
affidavits.16  If  notice  is  required,  then  the  hearing  will 
be  on  the  petition,  and  other  pleadings,  if  any,  and  such 
other  proofs  as  the  court  or  the  judge  deems  proper.17 
The  appointment  of  a  receiver  may  be  made  at  any  stage 
of  the  case,  even  at  final  hearing.18  So  an  appointment 
may  be  made  in  a  proper  case  at  any  time  during  the 
pendency  of  the  action  and  after  an  appeal  is  taken.19 
And  one  who  has  no  right  in  the  property  cannot  ques- 
tion the  appointment  of  a  receiver.20 

§  1237.  Of  notice  of  the  application. — Formerly  no- 
tice of  the  application  for  the  appointment  of  a  receiver 
was  required  to  be  given  the  opposite  party  in  nearly  all 
cases,  before  the  court  would  entertain  the  application,21 
and  as  a  general  rule  it  is  held  that  if  the  appointment  be 

12  Smith  v.  Wells,  20  How.  Pr.,          i»  Mitchell  v.  Roland,  63  N.  W., 
158.  606. 

is  O'Mahoney  v.  Belmont,  37  N.  20  Bartlett  v.  Bilger,  92-732. 

Y.  Supreme  Ct.  R.,  223.  21  Verplank    v.    Mercantile    Ins. 

n  Jones  v.  Graves,  20-596.  Co.,  2  Paige,  438;   Sanford  v.  Sin- 

13  Maish  v.  Bird,  59-307.  clair,  8  Paige,  373;  Field  v.  Ripley, 
IB  Code,  Sec.  3822;  French  v.  Gif-  20     How.    Pr.,    26;     Blondheim   v. 

ford,  30-148;   Bisson  v.  Curry,  35-      Moore,    11     Md.,  365;      Rogers    v. 
72,  80;  Jones  v.  Graves,  20-596.  Dougherty,  20  Ga.,  271;  Whitehead 

IT  Code,  Sec.  3822.  v.  Wooten,  43  Miss.,  523. 

is  Schulte  v.   Hoffman,   18   Tex., 
678;  High  on  Receivers,  Sec.  109. 


§  1237.]  RECEIVERS.  459 

made  in  vacation  and  without  notice  to  the  adverse 
party,  it  is  error,22  unless  there  are  peculiar  facts  or  cir- 
cumstances set  forth  in  the  petition  rendering  such  ac- 
tion proper.  Thus  it  is  held  that  where  the  adverse 
party  is  not  within  the  jurisdiction  of  the  court,  and  can 
not  be  served  with  notice,  or  can  not  be  readily  served 
with  notice,  the  court  may,  under  some  circumstances, 
appoint  a  receiver  without  notice.23  So  a  receiver  may 
be  appointed  before  the  defendant  has  been  served  with 
notice  of  the  pendency  of  the  action.24 

Notice  of  the  application  for  the  appointment  of  re- 
ceiver may  be  in  the  following  form: 

FORM    OF    NOTICE    OF   APPLICATION    FOR    APPOINTMENT    OF 

RECEIVER. 

Title, 
Venue. 

To  —    — ,  defendant,  or  to ,  his  attorney: 

You  are  hereby  notified  that  the  plaintiff  will  on  the day  of 

— ,  18 — ,  at  the  hour  of o'clock  A.  M.,  at  (place),  Iowa,  make 

application  to  the  honorable  ,  judge  of  the  district  court  for  the 

—  judicial  district  of  Iowa,  for  the  appointment  of  a  receiver  in  the 
above  entitled  cause.  Said  application  will  be  based  on  the  petition  of 
the  plaintiff,  now  on  file,  and  affidavits,  copies  of  which  are  hereto  at- 
tached. You  can  appear  and  resist  said  application  if  you  see  proper. 

Dated ,  18—. 

,  plaintiff, 

by ,  his  attorney. 

If,  as  is  customary,  the  judge  not  only  fixes  the  notice 
which  shall  be  given  the  adverse  party,  but  also  orders 
copies  of  the  affidavits  to  be  served,  such  service  may  be 
made  by  an  officer  who  should  make  proper  return,  or 
service  may  be  accepted  by  the  parties  on  said  notice, 
thus: 

FORM  OF  ACCEPTANCE  OF  SERVICE. 

Due  and  legal  service  is  hereby  accepted  of  the  within  notice  and 
copy  of  affidavits  attached. 

Dated ,  18—. 

(Signature.) 

22  French  v.  Gifford,  30-148;  Bis-          23  Maish  v.  Bird,  59-307. 
son  v.  Curry,  35-72;  Howe  v.  Jones,          21  Jones  v.  Graves,  20-596. 
57-130. 


460  BECEIVERS.  [§§  1238,  1239. 

§  1238.  Of  the  petition.— The  petition  for  the  ap- 
pointment of  a  receiver  may  be  in  the  following  form: 

FORM  OF  PETITION  FOR  THE  APPOINTMENT  OF  A  RECEIVER. 

Title,    | 
Venue,  f 

Par.  1.    The  plaintiff  states  that  on  the day  of  ,  18 — , 

he  entered  into  partnership  with  the  defendant  under  a  written  agree- 
ment, a  copy  of  which  is  attached  hereto  marked  "A,"  and  made  a  part 
hereof. 

Par.  2.  That  on  the day  of ,  18 — ,  and  during  the  exist- 
ence of  said  partnership,  said  defendant  took  exclusive  possession  of  the 
partnership  books  and  all  of  the  stock  and  property  of  said  firm  and 
has  ever  since  prevented  plaintiff  from  having  any  access  to  the  same, 
and  from  in  any  manner  participating  in  the  partnership  business  and 
refuses  to  confer  with  plaintiff  regarding  said  partnership  business. 

Wherefore  plaintiff  prays  that  said  partnership  may  be  dissolved, 
that  an  accounting  may  be  had  under  the  order  of  this  court  of  said  part- 
nership business,  and  the  amounts  due  plaintiff  and  defendant  ascer- 
tained. That  a  receiver  may  be  appointed  to  take  possession  of  and  sell 
said  partnership  property,  and  that  the  proceeds  of  said  partnership 
property  may  be  applied,  first,  in  payment  of  the  costs  of  said  receiver- 
ship and,  second,  in  payment  of  the  partnership  debts,  and  the  balance 
be  divided  between  said  partners  according  to  their  respective  rights 
thereto,  and  for  such  other  and  further  relief  as  may  be  equitable  in 
the  premises  and  for  costs. 

,  attorney  for  plaintiff. 

(Add  verification  and  attach  exhibit  "A"  referred  to.) 

§  1239.  In  cases  of  partnership. — Courts  are  fre- 
quently asked  to  appoint  receivers  in  actions  between 
partners  for  an  account  and  settlement  of  their  partner- 
ship affairs,  and  to  close  up  the  business  of  the  firm;  and 
their  jurisdiction  to  do  so  in  cases  where  the  parties  can 
not  agree  as  to  the  disposition  of  the  partnership  prop- 
erty is  well  settled.25  A  partnership  agreement  is  bind- 
ing upon  the  parties,  and  they  must  adhere  to  its  terms. 

Neither  partner  is  at  liberty  to  recede  from  it  against 
the  will  of  the  other,  without  a  sufficient  cause.  Mere 
dissatisfaction  by  one  partner  will  not  justify  him  in 
filing  a  bill  for  dissolution,20  where  the  partnership  has 
not  expired  by  virtue  of  the  articles  of  agreement.  It 

25  Saylor  v.  Mockbie,  9-209.  ze  Henn  v.  Walsh,  2  Ed.  Chy.,  159. 


§  1239.]  RECEIVERS.  461 

must  appear  that  the  case  is  such  a  one  as  would  author- 
ize a  decree  for  a  dissolution  of  the  partnership  before 
the  court  will  interfere  by  appointing  a  receiver.27 

In  cases  where  the  right  to  dissolve  the  partnership 
exists,  and  the  articles  of  co-partnership  do  not  provide 
for  the  settlement  of  the  firm  affairs,  and  the  partners  can 
not  agree  with  reference  thereto,  a  receiver  will  be  ap- 
pointed on  proper  application  therefor.28  So  an  assignee 
of  a  partner  who  has  succeeded  to  his  interest  in  the  firm, 
may  have  a  receiver  appointed  in  certain  cases.29  While 
it  is  the  policy  of  the  law  and  the  courts  in  the  appoint- 
ment of  a  receiver  to  wind  up  the  business  of  the  partner- 
ship as  speedily  as  possible,  yet,  when  it  appears  to  the 
court  to  be  for  the  best  interest  of  the  partnership  that 
the  business  be  carried  on  until  the  property  can  be  dis- 
posed of,  it  may  so  direct.30  The  power  of  the  court 
or  the  judge  under  the  statute  in  exercising  control  over, 
or  ordering  the  sale  of  the  partnership  property  or  the 
carrying  on  of  the  firm's  business,  seems  to  be  ample  to 
justify  any  action  which  the  court,  or  judge,  shall  deem 
for  the  best  interest  of  the  parties.31  It  is  a  well  settled 
rule  that  to  entitle  one  claiming  to  be  a  partner  to  the 
appointment  of  receiver  to  wind  up  the  partnership  af- 
fairs, it  must  appear  that  there  was  a  completed  part- 
nership at  least  so  as  to  entitle  him  to  a  participation  in 
the  profits  of  the  business.32  If,  after  the  dissolution  of 
the  partnership,  either  partner  uses  the  partnership 
property  inconsistent  with  the  winding  up  of  its  affairs, 
it  is  a  fraud  on  the  other  partners,  and  upon  the  creditors 
of  the  partnership,  and  on  proper  application  a  receiver 
will  be  appointed  to  take  charge  of  the  property.33  The 

27  Jackson  v.  De  Forest,  14  How.,  si  Code,    Sec.    3822;     Saylor    v. 

81;    Garretson  v.  Weaver,  3   Edw.  Mockbie.  9-209. 

Chy.,  385;   Henn  v.  Walsh,  2  Ed.  32  Goulding  v.  Bain,  4  Sanf.,  716; 

Chy.,  129.  Kerr  v.  Potter,  6  Gill.,  404;  Hobart 

23  Law  v.  Ford,  2  Paige  Ch.,  310;  v.  Ballard,  31-521;  Dupuy  v.  Sheak, 

Henn  v.  Walsh,  2  Edw.  Ch.,  129.  57-361. 

29  Maynard  v.  Railey,  2  Nev.,  313.  as  Gortner  v.  The  Trustees  of  the 

so  Martin  v.  Van  Shaik,  4  Paige  Villaare    of   Canajoharie,    2    Barb., 

Ch.,  479;   Allen  v.  Hawley,  6  Fla.,  625;  West  v.  Chasten,  12  Fla.,  315; 

164;  Jackson  v.  De  Forest,  14  How.  Harding  v.  Glover,  18  Ves.,  281. 
Pr.,  81. 


462  BECEIVEKS.  [§  1240. 

acts  of  a  partner  which  will  justify  a  court  in  appointing 
a  receiver  at  the  instance  of  another  partner  to  take  pos- 
session and  control  of  partnership  property  are  many, 
and  the  following  have  been  held  sufficient:  When, 
upon  dissolution,  one  partner  prevents  or  seeks  to  ex- 
clude the  other  from  participation  in  the  management 
of  the  firm  effects.34  Where  a  partner  violates  the  arti- 
cles of  co-partnership,  or  is  guilty  of  a  breach  of  duty.35 
Where  there  is  a  serious  and  apparently  irreconcilable 
disagreement  between  the  partners  both  as  to  the  control 
and  disposition  of  their  effects  and  as  to  their  respective 
demands  against  each  other.36 

Where  one  partner  mismanages  the  firm  business,  pro- 
ducing insolvency.37  Where  the  conduct  of  the  defend- 
ant partner  has  been  such  as  to  satisfy  the  court  that  he 
has  deliberately  resolved  to  break  UD  and  ruin  the  firm 
business,  and  the  personal  relations  between  the  part- 
ners are  such  that  they  could  not  carry  on  business  ad- 
vantageously together.38  A  partner  in  possession  is  not 
entitled  to  a  receiver  in  any  case;39  as  the  object  and  pur- 
pose of  appointing  a  receiver  as  between  partners  is  only 
for  the  protection  of  the  party  complaining  against  the 
adverse  party  in  possession. 

§  1240.  In  cases  of  mortgaged  property. — It  seems 
that  a  receiver  will  not  be  appointed  on  the  application  of 
a  mortgagee,  to  take  possession  of  mortgaged  premises, 
unless  it  clearly  appears  that  the  whole  premises  are  in- 
sufficient to  pay  the  debt,  or  that  the  court  should  take 
control  of  the  estate  to  protect  the  rights  of  a  party  who 
has  a  clear  and  strong  claim  against  it40  Nor  will  a  re- 
ceiver be  appointed  in  an  action  to  foreclose  a  mortgage 
when  the  rents  and  profits  of  the  land  are  being  applied 

34  Terrell  v.  Goodard,  18  Ga.,  664.          so  Smith   v.   Lowe,    1   Edw.   Ch., 

35  New  v.  Wright,  44  Miss.,  202;      33. 

Allen  v.  Hawley,  6  Fla.,  164.  *o  Callanan  v.  Shaw,  19-185;  My- 

ss  Whiteman     v.     Robinson,     21  ton  v.  Davenport,  51-583;  White  v. 

Md.,  30.  Griggs,  54-651;  see  also  Edie  v.  Ap- 

37  Boyce  v.  Burchard,  21  Ga.,  74.  plegate,  14-273. 

38  Sutro  v.  Wagner,  8  C.  E.  Gr., 
388. 


0  12-10.]  RECEIVEKS.  463 

in  payment  of  the  mortgagee's  debt,  and  necessary  ex- 
penses incurred  in  the  care  and  management  of  the 
property.41  A  mortgagee  has  the  right  to  the  appoint- 
ment of  a  receiver  only  as  to  property,  upon  which  his 
mortgage  is  a  lien,  and  then  only  where  there  is  danger 
of  its  being  lost  or  materially  injured;  he  can  not  have 
a  receiver  to  take  charge  of  crops  on  the  mortgaged 
premises  during  the  period  of  redemption.42  The  ap- 
pointment of  a  receiver  after  a  final  judgment  of  fore- 
closure to  take  charge  of  mortgaged  premises  is  unusual, 
and,  if  allowable  at  all,  the  application  should  be  sup- 
ported by  a  strong  showing.43 

Whether  a  receiver  will  be  appointed  in  any  case  to 
take  possession  of  a  homestead  pending  proceedings  to 
foreclose  a  mortgage  thereon,  qua?re.  When  a  party  ex- 
ecuted a  chattel  mortgage  on  his  stock  of  merchandise  to 
creditors  having  claims  nearly  equal  in  amount  to  the 
value  of  the  stock,  and  the  mortgagees  have  possession 
thereunder  by  an  agent,  and  are  selling  the  stock  in  the 
ordinary  course  of  trade,  and  are  garnished  by  an  unse- 
cured creditor  of  the  mortgagor,  this  is  no  ground  for 
the  appointment  of  *a  receiver.44  In  cases  not  covered  by 
this  section  of  the  statute  the  court  may  -appoint  a  re- 
ceiver in  accordance  with  the  stipulation,  of  the  parties 
made  in  the  contract  creating  the  indebtedness.45 

The  mortgagee  of  goods,  whose  debt  is  not  due,  but 
wrho  has  taken  possession  of  the  property  under  his  mort- 
gage which  provided  that  he  might  take  possession  when- 
ever he  should  choose  so  to  do,  and  sell  the  goods  at  pub- 
lic auction,  or  so  much  thereof  as  should  be  sufficient  to 
pay  the  amount  due,  or  to  become  due,  as  the  case  might 
be,  with  all  reasonable  costs  pertaining  to  the  sale  of  the 
same,  and  has  been  garnished  by  the  creditors  of  the 
mortgagor,  and  has  instituted  his  action  in  equity  to 
foreclose  the  mortgage,  he  may  have  a  receiver  to  take 

«  Myton  v.  Davenport,  51-583.  *s  Adair  v.  Wright,  16-387. 

42  White  v.  Griggs,  54-651;  Swan  **  Silverman  v.  Kuhn,  53-436. 

v.  Mitchell,  82-307;  American  Inv.  «  Hubbell  v.  Avenue    Inv.    Co., 

Co.  v.  Farrar,  87-437.  66  N.  W.,  85. 


4G-i  RECEIVERS. 

possession  of  and  sell  the  goods  in  the  ordinary  course  of 
business;46  it  might  be  otherwise  were  it  not  for  the 
provisions  of  the  mortgage.47  The  decree  rendered  in 
an  action  for  the  appointment  of  a  receiver  in  a  foreclos- 
ure suit  upon  the  the  allegation  that  the  property  was  in- 
adequate to  pay  the  mortgage  debt,  constitutes  an  ad- 
judication upon  the  right  of  the  receiver  to  collect  the 
rents  and  profits  of  the  property.48  Though  the  mort- 
gage creates  a  lien  upon  the  rents  and  profits  and  stipu- 
lates that  a  receiver  maybe  appointed, still  the  mortgagee 
is  not,  as  a  matter  of  course,  entitled  to  have  a  receiver 
appointed  after  a  judgment  of  foreclosure,  if  it  does  not 
appear  that  such  rents  and  profits  are  being  wasted  or 
that  they  are  being  improperly  applied  on  prior  mort- 
gages.49 And  under  a  mortgage  providing  that  in  case 
of  default  the  mortgagee  might  take  possession  and  ap- 
ply the  rents  and  profits  to  the  satisfaction  of  the  mort- 
gage, and  when  it  was  not  stipulated  that  a  receiver 
might  be  appointed  it  was  held  error  to  make  such  ap- 
pointment and  to  take  possession  of  the  property  during 
the  period  of  redemption  for  the  benefit  of  the  mort- 
gagee.50 Nor  is  a  mortgagee  entitled  to  the  appoint- 
ment of  a  receiver  where  the  mortgage  does  not  give  the 
mortgagee  the  right  of  possession  before  sale,  nor  pledge 
the  rents  and  profits.51  If,  however,  the  mortgage 
pledges  the  rents  for  the  payment  of  the  debt,  and  they 
are  not  so  applied,  and  the  tenant  is  a  foreign  corpora- 
tion and  insolvent  and  the  security  is  insufficient,  and  the 
mortgage  authorizes  a  receiver  to  be  appointed  on  de- 
fault, such  appointment  is  proper.52 

§  1241.  In  cases  of  corporations. — A  receiver  may 
be  appointed  for  a  corporation,  and  the  power  of  courts 
to  appoint  receivers  is  frequently  invoked  in  cases  of 

46  Maish  v.  Bird,  59-307.  BI  American  Inv.  Co.  v.  Farrar 

47  Maish  v.  Bird,  59-307.  87-437. 

4»  Goodhue  v.  Daniels,  54-19.  *z  Stetson  v.  Northern  Inv.  Co., 

49  Paine  v.  McElroy,  73-81.  70  N.  W.,  595. 

eo  Swan  v.  Mitchell,  82-307. 


§§  1242,  1243.]  RECEIVERS.  465 

railroads.53  An  action  resulting  in  the  appointment  of 
a  receiver  for  a  corporation  is  an  adjudication  of  his 
power  to  sue  for  and  receive  an  assessment  upon  unpaid 
stock.54  This  statute  does  not  authorize  the  dissolution 
of  a  corporation  nor  the  placing  of  its  property  in  the 
hands  of  a  receiver  by  a  court  of  equity  merely  because 
there  are  dissentions  among  its  stockholders.55 

§  1242.  Rights  of  third  parties  protected.— While 
the  court  will,  in  a  proper  case,  appoint  a  receiver,  yet 
if  third  parties  have  acquired  rights  in  good  faith,  the 
court,  or  judge,  will  not  order  the  property  into  a  re- 
ceiver's hands;  such  parties'  rights  can  not  be  adjudi- 
cated in  this  summary  and  collateral  method;56  but 
where  a  receiver  had  been  appointed,  and  the  party  made 
no  resistance  to  the  order,  and  did  not  appeal  from,  the 
same,  he  could  not  afterward,  by  an  assignment,  direct 
the  disposition  to  be  made  of  any  part  of  the  property, 
as  he  had  no  control  over  the  fund;  it  being  in  a  court  of 
equity  he  could  not  interfere  in  its  equitable  distribu- 
tion;57 and  when  a  receiver  has  been  appointed,  and  it 
turns  out  on  a  hearing  that  the  property  belonged  to  in- 
tervening third  parties,  unless  they  be  benefited  by  the 
appointment,  they  can  not  be  made  to  pay  any  of  the  re- 
ceiver's fees  and  expenses.58 

§  1243.  His  qualification. — The  appointment  may  be 
in  the  following:  form: 


Title, 
Venue 


FORM  OF  APPOINTMENT  OF  RECEIVER. 

.1 


On  reading  the  pleadings  (and  the  affidavits  of  A  B  and  C  D,  if  any 
are  filed)  herein  filed,  and  on  motion  of  the  plaintiff  (and  having  heard 
defendant's  counsel,  if  a  hearing  is  had). 

Ordered:  1.  That  —  —  be,  and  he  is  hereby,  appointed  a  receiver 
of  (specify  the  property  with  as  much  particularity  as  possible). 

sa  Cook  v.  Cole,  55-70;    The  Bk.  ns  Wallace  v.  Fierce-Wallace  Pub 

of  Montreal  v.  C.,  C.  &  W.  R.  Co.,  Co.,  70  N.  W.,  216. 

48-518.  so  Levi  v.  Karrack,  13-344. 

s*  Stewart  v. Lay, 45-604;  Schoon-  s-  Tailor  v.  Gillen,  25  Tex.,  508; 

over  v.  Hinckley,  48-82.  McGowan  v.  Meyers,  66-102. 

ss  Howe  v.  Jones,  66-156. 
Vol.  11-30 


4G6  EECE1VEES.  [§  1243. 

2.  That  said hereby  appointed,  before  entering  upon  the  dis- 
charge of  his  duties,  shall  file  a  bond,  with  the  clerk,  with  sureties  to  be 

approved  by  him,  in  the  penalty  of dollars,  and  take  the  oath 

prescribed  by  law. 

3.  That  upon  the  filing  of  such  bond,  and  taking  of  such  oath, 
such  receiver  shall  be  vested  with"  the  usual  rights  and  powers  of  re- 
ceive'rs  under  this  court  (and  specify  any  peculiar  powers  bestowed,  or 
directions  given). 

Done  this  day  of ,  18 — . 

,  judge,  etc. 

Before  entering  on  the  discharge  of  his  duties  he  must 
be  sworn  faithfully  to  discharge  his  trust  to  the  best  of 
his  ability  and  must  also  file  with  the  clerk  a  bond  with 
sureties  to  be  by  him  approved  in  a  penalty  to  be  fixed 
by  the  court  or  judge,  and  conditioned  for  the  faithful 
discharge  of  his  duties  and  that  he  will  obey  the  order 
of  the  court  in  respect  thereto;59  the  bond  should  be  in 
substantially  the  following  form: 

FORM  OF  BOND  OF  RECEIVER. 

Know  all  men  by  these  presents  that  we,  ,  principal,   and 

and ,  sureties,  are  held  and  firmly  bound  unto  (the  parties 


in  the  action)  in  the  penal  sum  of dollars,  lawful  money  of  the 

United  States,  well  and  truly  to  be  paid  to  them,  and  each  of  them,  and 
their  heirs,  executors  and  assigns. 

The  condition   of  this  obligation  is   such  that  whereas  the   said 

was,  on  the  day  of  ,  A.  D.  18 — ,  appointed  by  the 

district  court  of  the  State  of  Iowa,  in  and  for county  (or  by  the 

judge  of  such  court),  a  receiver  in  an  action  commenced  (or  pending) 

in  said  court,  wherein is  plaintiff  and is  defendant.     Now, 

if  the  said  (name)  shall  and  will,  well  and  faithfully  discharge  his  duties 
as  such  receiver,  and  obey  the  orders  of  the  court  in  respect  thereto, 
then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force  and 
virtue. 

Dated  at  ,  A.  D.    18—. 

,  principal. 


sureties. 


(Sureties  should  justify  as  provided  by  the  statute.) 


The  clerk  must  make  following  indorsement  approv- 
ing the  sureties: 

69  Code,  Sec.  3823. 


§  1244.]  EECEIYERS.  467 

FORM   OF   APPROVAL  OF    SURETIES. 

The  sureties  in  the  within  bond  approved  by  me,  and  bond  filed  in 

my  office,  this  day  of  ,   18 — . 

,  clerk,  district  court. 

The  oath  should  be  in  the  following  form,  and  either 
written  on  the  back  of  the  bond  or  on  a  separate  paper 
and  attached  to  it: 

FORM  OF   RECEIVER'S  OATH. 

I,  ,  receiver  in  the  case  of v. ,  now  pending  in 

the  district  court  of county,  Iowa,  do  solemnly  swear  that  I  will 

faithfully  discharge  my  trust  as  receiver  in  said  cause  to  the  best  of 
my  ability.        So  help  me  God. 

(Signature.) 

I  hereby  certify  that  the  foregoing  oath  was  administered  to 

by  me  and  subscribed  by  him  in  my  presence  this day  of , 

18— 

[Seal.]  ,  clerk  of  the  district  court. 

The  receiver,  when  qualified  as  above,  may  enter  on 
his  duties. 

§  1244.  His  powers  and  duties. — Being  an  officer 
of  the  court  the  receiver  is  in  some  respects  but  an  agent 
of  the  court  for  the  transaction  of  the  business  pertain- 
ing to  his  trust,  subject  to  the  control  of,  the  court,  or 
judge;  he  has  power  to  bring  and  defend  actions;  to 
take  and  keep  possession  of  property;  to  collect  debts; 
to  receive  the  rents  and  profits  of  real  property  and  gen- 
erally to  do  such  acts  in  respect  to  the  property  commit- 
ted to  him  as  may  be  authorized.60 

Ordinarily  a  receiver's  powers  are  derived  from  the 
order  of  appointment,  but  it  would  seem  that  some  dis- 
cretion must  be  lodged  in  him  as  circumstances  may 
arise  calling  for  speedy  action  in  order  to  preserve  the 
property  committed  to  his  care,  in  which  case  courts 
seem  inclined  to  uphold  such  action  of  the  receiver  when 
it  is  manifestly  necessary  to  preserve  and  protect  the 
property.  Thus  where  certain  "mills  and  a  block"  were 
committed  to  the  control  of  a  receiver,  it  was  held  he 

eo  Code,  Sec.  3824;  Smith  v.  Dayton,  62  N.  W.,  650. 


468  RECEIVERS.  [§  1245. 

might  prosecute  an  action  relating  to  a  wharf  which  was 
connected  therewith,  and  was  originally  constructed  for 
the  purpose  of  more  conveniently  carrying  on  the  mills.61 
He  may  maintain  an  action  in  equity  against  officers 
who  conceal  assets  for  the  purpose  of  converting  them  to 
their  own  use.62  Ordinarily  he  can  not  act  in  a  foreign 
State  or  sue  therein.63  He  may  take  property  on  ac- 
count of  indebtedness,  to  be  credited  as  may  be  approved 
by  the  court.64  And  see  further  as  to  his  rights.65  In 
a  proceeding  under  the  statute  to  wind  up  an  insolvent 
bank  the  court  may,  on  the  application  of  a  receiver, 
make  an  ex  parte  order  for  an  assessment  against  the 
stockholders  to  discharge  their  liability  subject  to  the 
right  of  each  stockholder  to  contest  such  liability  when 
sued  for  payment  of  the  assessment.  And  in  such  case 
it  is  not  necessary  for  the  receiver  to  first  exhaust  all  the 
assets  before  enforcing  the  stockholders'  liability.66 

Where  a  receiver  was  appointed  and  an  appeal  taken 
from  the  order  of  appointment,  and  a  supersedeas  filed, 
the  property  did  not  pass  into  the  custody  of  the  receiver 
until  he  actually  took  possession  of  it,  after  an  affirmance 
by  the  supreme  court,  and  until  that  time  the  control  of 
the  property  remained  in  the  defendant.67 

The  action  resulting  in  the  appointment  of  a  receiver 
is  an  adjudication  of  his  power  to  collect  rents,  or  to  sue 
for  an  assessment  on  unpaid  stock  of  a  corporation.68  In 
all  cases  where  the  power  of  a  receiver  to  do  an  act  is  in 
doubt  he  should,  if  possible,  apply  to  the  court  which  ap- 
pointed him  for  authority  to  act. 

§  1245.  His  liability. — As  has  been  seen,  the  re- 
ceiver is  at  all  times  subject  to  the  orders  of  the  court, 
or  judge,  appointing  him.  If  property  committed  to  his 

ei  Grant  v.  City  of  Davenport,  18-  zer    v.    Applegate,  85-121;  Polk  v. 

179.  Carver,  91-570. 

62  Brandt  v.  Allen,  76-50.  ee  state    v.    Union    Stock  Yards 

esAyres  v.  Siebel,   82-347;    Bar-  State  Bk.,  70  N.  W.,  752. 

ker  v.  Lamb,  68  N.  W.,  686.  «?  Cook  v.  Cole,  55-70. 

e*  Everingham  v.   Harris,  68  N.  68  Stewart  v.  Lay,  45-604 ;  Schoon- 

W.,  804.  over  v.  Hinckley,  48-82;    Goodhue 

65  Kimball  v.  Gafford,  78-65;  Yet-  v.  Daniels,  54-19. 


§  1245.]  EECEIVERS.  469 

care  is  lost  or  destroyed  by  reason  of  his  negligence  or 
dishonesty,  he  is  liable.69  When  he  acts  in  violation  of 
the  orders  of  the  court  appointing  him,  he  may  be  lia- 
ble.70 Where  one  was  appointed  receiver  for  a  railroad! 
which  was  about  to  be  built,  and  authorized  to  do  and 
perform  all  acts  and  things  necessary  to  construct  and 
complete  the  line  of  road,  and  to  borrow  money  for  such 
construction,  equipment  and  final  completion,  and  issue 
certificates  therefor  which  should  be  a  first  lien  on  the 
road,  he  was  not  thereby  authorized  to  issue  such  certifi- 
cates for  material  for  said  road  until  the  material  had 
been  furnished,  and  such  certificates  were  void.71  And 
as  such  certificates  showed  on  their  face  that  they  were 
issued  under  the  order  of  the  court,  the  parties  were 
chargeable  with  notice  of  the  order  and  the  extent  of 
the  receiver's  power  thereunder.72  He  is  liable  in  an 
action  providing  for  double  damages  in  cases  of  injuries 
to  stock  where  a  road  is  not  fenced  if  he  is  operating  a 
railroad  as  a  receiver.73  When  a  railroad  was  sold  under 
a  mortgage  foreclosure  in  which  a  receiver  had  been  ap- 
pointed the  purchaser  took  the  property  free  from  claims 
for  injuries  which  had  not  been  reduced  to  judgment.74 

He  may  be  sued  in  a  court  of  law  in  an  action  for  dam- 
ages against  the  corporation  of  which  he  is  receiver, 
without  the  plaintiff  obtaining  leave  to  prosecute  his 
action  from  the  court  which  appointed  the  receiver.75 
Wliere  a  receiver  took  possession  of  a  railroad,  under 
order  of  the  United  States  circuit  court,  and  during  said 
time  a  claim  for  damages  arose  in  favor  of  a  party  and 
against  the  receiver  on  account  of  personal  injuries,  and 
the  cour't  ordered  the  railway  to  be  turned  over  to  de- 
fendant on  condition  that  it  assumed  the  liabilities  in- 

» 

69  Kaiser  v.  Kellar,  21-95.  73  Brockert  v.   Central   Iowa  R. 

TO  Manning     v.      Monaghan,  1      Co.,  82-369. 

Bosw.,  459.  74  Brockert  v.  Iowa  Cent.  R.  Co.,. 

71  The  Bank  of  Montreal  v.  C.,      93-132. 

C.  &  W.  R.  Co.,  48-518.  75  Allen  v.  Central  R.  R.  Co.,  42- 

72  The  Bk.  of  Montreal  v.  C.,  C.  683;    Kinney  v.  Crocker,  18  Wis,,. 
&  W.  R.  Co.,  48-518;  see  Tripp  v.  74;  Paige  v.  Smith,  99  Mass.,  375; 
Boardman,  49-410.  Hall  v.  Parker,  111  Mass.,  508. 


470  BECEIVERS.  [§  1246. 

curred  while  the  road  was  operated  by  the  receiver,  and 
defendant  accepted  the  property  with  conditions  at- 
tached, it  became  liable  to  plaintiff  on  account  of  his 
claim  for  damages.76  So,  a  receiver  is  not  required  to 
pay  interest  upon  money  received  by  him  in  discharge 
of  his  official  duties,  upon  the  ground  that  he  mingles  it 
with  his  individual  funds,  or  draws  therefrom  money  for 
his  own  use,  and  this  is  especially  true  where  there  is  no 
evidence  that  he  used  the  trust  funds,  or  that  he  was 
negligent  or  unfaithful  in  the  discharge  of  his  duties.77 
When  the  property  of  any  company,  corporation,  firm  or 
person  is  seized  upon  by  any  process  of  any  court  of  this 
State,  or  when  their  business  is  suspended  by  the  action 
of  creditors  or  put  into  the  hands  of  a  receiver  or  trustee, 
the  debts  owing  their  laborers  or  servants  which  have 
accrued  by  reason  of  their  labor  or  employment  to  an 
amount  not  exceeding  one  hundred  dollars  to  each  em- 
ploye for  work  or  labor  performed  within  ninety  days 
next  preceding  the  seizure  or  transfer  of  such  property, 
are  to  be  treated  as  preferred  and  paid  in  full,  and  if 
there  are  not  sufficient  funds  to  pay  them  in  full  then  the 
same  are  to  be  paid  pro  rata  after  paying  costs.  And 
if  such  servant  or  laborer  present  this  claim  under  oath 
as  provided  by  the  statute  within  thirty  days  after  such 
property  has  been  placed  in  the  hands  of  a  receiver  or 
trustee,  the  latter  must  pay  said  claim  or  claims  to  the 
person  or  persons  entitled  thereto  (after  first  paying  all 
costs)  out  of  the  proceeds  of  the  sale  of  the  property.78 

§  1246.  His  compensation. — When  the  statute  is 
silent  regarding  the  compensation  of  receivers,  it  is  in 
the  power  of  the  court  to  fix  his  compensation.79  The 
amount  of  it  will  depend  on  the  amount  of  time,  care 
and  skill  required  in  the  proper  execution  of  his  trust; 

76  Sloan  v.  Central  la.  Ry.  Co.,  ?»  Gardner  v.  Tyler,  3  Keyes,  505; 

62-733.  Magee  v.  Cowperthwaite,  10  Ala., 

"Radford    v.    Folsom,    55-282;  966;    Baldwin  v.  Eazler,  34  N.  Y. 

Howe  v.  Jones,  60-70.  Supr.  Ct.  R.,  275. 

78  Code,  Sees.  4019  to  4022;  Rey- 
nolds v.  Black,  91-1. 


§  1247.]  RECEIVEKS. 

and  generally  his  compensation  is  paid  out  of  the  fund  in 
his  hands;  nor  can  he,  in  a  case  where  no  question  was 
made  as  to  the  propriety  or  legality  of  his  appointment, 
and  after  he  has  closed  his  business,  be  compelled  to  ac- 
cept as  part  of  his  compensation  a  judgment  against  the 
party  securing  his  appointment.80  Nor  can  he  be  com- 
pelled to  pay  the  costs  of  a  reference  growing  out  of 
the  settlements  of  his  accounts  where  no  bad  faith  on  his 
part  is  claimed.81  But  where  the  appointment  of  a  re- 
ceiver was  improper,  and  it  is  vacated  by  the  court,  the 
compensation  to  the  receiver  may  be  ordered  paid,  part 
from  the  fund  and  part  by  the  plaintiff,  in  the  discretion 
of  the  court.82  A  receiver  may  correct  his  report,  and  may 
deduct  from  the  funds  in  his  hands  such  sum  as  he  may 
have  been  compelled  to  pay  as  attorney's  fees  and  other 
charges  for  collecting  the  funds  in  his  hands,  where  these 
disbursements  wTere  made  in  good  faith  and  were  neces- 
sary to  the  party  entitled  to  the  fund.83  Where,  by 
agreement  of  parties,  excessive  compensation  was  al- 
lowed to  a  receiver,  such  allowance  will  not  be  set  aside 
on  the  application  of  one  of  the  parties  made  more  than 
six  months  after  the  order  was  entered  when  no  appeal 
has  been  taken.84  Ordinarily,  a  receiver's  compensation 
should  be  taken  from  the  funds  in  controversy.85 

§  1247.  He  can  not  be  garnished. — The  possession 
of  the  receiver  being  regarded  as  that  of  the  court  from 
which  he  derived  his  appointment,  he  can  not  be  gar- 
nished, nor  wrill  the  court  thus  permit  itself  to  be  made 
a  party  to  a  litigation  in  another  forum;  the  process  of 
garnishment  in  such  cases  will  be  regarded  as  a  nullity.86 
To  permit  him  to  be  garnished  would  defeat  the  very 
ends  for  which  he  was  appointed.87 

soRadford  v.  Folsom,  55-282.  ss  McGowan    v.    Meyers,    66-99; 

si  Radford  v.  Folsom,  55-282.  High  on  Receivers,  Sec.  151;  Tailor 

82  French  v.  Gifford,  31-428.  v.  Gillen,  25  Texas,  508;    see  Noe 

ss  Howe  v.  Jones,  60-78.  v.  Gibson,  7  Paige  Ch.,  513. 

84  Russell  v.  First  Nat'l  Bk.,  65-  «T  Field  v.  Jones,  11  Ga.,  413;  see 

242.  Howard  County  v.  Strother,  71-683. 
so  Jaffray  v.  Raab,  72-335. 


472  DECEIVERS.  [§  1248. 

§  1248.  Of  appeals. — An  appeal  will  lie  from  the 
order  appointing  or  refusing  to  appoint  a  receiver.88  Any 
irregularity  in  the  proceedings  of  a  receiver  must  be  cor- 
rected by  the  court  which  appointed  him,  and  can  not  be 
reviewed  in  an  action  in  another  forum.89  While  it 
seems  a  receiver  can  not  appeal  from  an  order  directing 
him  to  turn  over  the  property  in  his  hands,  yet  when  the 
order  erroneously  fixes  the  amount  of  property  in  his 
custody,  and  directs  him  to  turn  over  more  than  he  has, 
an  appeal  should  be  permitted.90 

ss  The   Des   Moines   Gas   Co.   v.          «»  Stewart  v.  Lay,  45-604. 
West,  44-25.  so  Howe  v.  Jones,  60-78. 


CHAPTEK  LXXVIII. 

OF  REDEMPTION. 

Sec.  1249.  What  property  is  subject  to  redemption. 

1250.  Of  the  certificate  of  sale. 

1251.  Of  redemption  made  by  the  defendant. 

1252.  When  redemption  may  be  made  by  creditors. 

1253.  Who  is  a  creditor  under  the  statute. 

1254.  Of  redemption  by  holder  of  mechanic's  lien. 

1255.  Of  redemption  in  equity. 

1256.  What  law  is  applicable  to  the  sale. 

1257.  Of  creditors  redeeming  from  each  other. 

1258.  Of  computing  the  time  of  redemption. 

1259.  Of  the  terms  of  redemption. 

1260.  Same. 

1261.  Who  obtains  the  property. 

1262.  Of  the  mode  of  redemption. 

1263.  Of  settling  controversies  as  to  the  right  to  redeem  or  as  to 

the  amount  to  be  paid. 

1264.  Of  redemption  from  sale  in  parcels,  and  of  the  interest  of 

tenants  in  common. 

1265.  Of  the  rights  of  the  purchaser. 

1266.  Of  assigning  the  right  to  redeem. 

1267.  Of  the  sheriff's  deed. 

1268.  When  the  deed  is  constructive  notice. 

1269.  Of  the  sheriff's  return. 

1270.  Of  damages  for  injury  to  property,  etc. 

Section  1249.  What  property  is  subject  to  re- 
demption.— As  has  been  seen,  any  estate  in  real  prop- 
erty greater  than  a  leasehold  interest,  having  two  years 
of  an  unexpired  term  to  run,  which  is  sold  on  execution 
or  attachment,  is  redeemable.1  Yet  it  is  held  that  a 
decree  of  sale  without  redemption,  while  erroneous,  is 
not  necessarily  void.2 

§   1250.     Of  the  certificate  of  sale.— If  the  property 

1  Code,  Sec.  4043.  see  Moore  v.  Jeffries,  53-202;   Gil- 

2  Traer  v.  Whitman,  56-443,  and      lett  v.  Edgar,  22-293. 

473 


474  EEDEMPTION.  [§1250. 

sold  be  subject  to  redemption,  the  sheriff  must,  at  the 
time  of  sale,  execute  to  the  purchaser  a  certificate  of  sale, 
which  must  contain  a  description  of  the  property  sold,  a 
statement  of  the  amount  of  money  paid  by  the  purchaser, 
and  it  must  also  state  that  unless  redemption  is  made 
within  one  year  thereafter,  according  to  law,  he,  or  his 
heirs  or  assignees,  will  be  entitled  to  a  deed  of  the  land, 
or  of  the  interest  sold  therein.3  Such  certificate  is  ad- 
missible in  evidence,  after  the  proper  foundation  is  laid 
for  the  introduction  of  secondary  evidence,  as  tending 
to  show  the  existence  and  contents  of  the  execution 
under  which  the  sale  was  made.4  If  land  has  been  ir- 
regularly sold  under  execution,  the  defendant  can  not 
pay  off  the  judgment  against  him  and,  having  procured 
the  sale  to  be  set  aside  on  the  ground  of  irregularity, 
compel  the  purchaser  to  look  to  the  sheriff,  or  to  the 
plaintiff,  for  reimbursement  of  the  amount  he  paid.  The 
court  will,  on  motion,  set  aside  the  credit  on  the  judg- 
ment to  the  extent  of  the  bid,  and  order  a  re-sale  of  the 
property,  for  the  purpose  of  indemnifying  him,  and  to 
prevent  such  re-sale  the  defendant  must  reimburse  the 
purchaser.5  The  certificate  may  be  assigned,  and  the  as- 
signee takes  it  subject  to  any  equities  existing  against 
the  assignor.6  If  the  purchaser  takes  a  deed  at  the  sale 
relying  on  the  claim  that  the  other  party  has  no  right  to 
redeem,  it  is  not  necessary  that  an  offer  to  redeem  be 
made  in  order  to  entitle  the  execution  defendant  to  main- 
tain an  action  to  set  aside  the  deed.7  If  a  creditor  pays 
money  to  the  purchaser  by  way  of  redemption,  and  takes 
an  assignment  of  the  certificate,  he  thereby  acquires  the 
rights  of  the  purchaser  although  his  redemption  may  not 
be  effectual.8 

The  certificate  of  sale  may  be  in  the  following  form: 

s  Code,  Sec.  4044.  Grey  v.  Dye,  39-360;  Hum  v.  Hill, 

*  Conger  v.  Converse,  9-554.  70-38;    Wilson  v.  Conklin,  22-452; 

6  Fleming  v.  Maddox,  32-493.  Streeter  v.  First  Nat'l  Bk.,  53-177; 

e  Van  Gorder  v.   Lundy,  66-448;  Brooks  v.  Keister,  45-303. 

see  Seevers  v.  Wood,  12-295;   Citi-  ?  Fitzgerald  v.  Kelso,  71-731. 

zens    S.    Bk.    v.   Percival,     61-183;  «  Rush  v.  Mitchell,  71-333;   Wil- 

Scribner    v.    Vandercook,    54-580;  son  v.  Conklin,  22-452. 


§  1251.]  REDEMPTION.  475 

FORM  OF   SHERIFF'S   CERTIFICATE   OF    SALE. 

To  whom  it  may  concern: 

I, ,  sheriff  of county,  Iowa,  hereby  certify  that  by  virtue 

of  a  general  (or  special  as  the  case  may  be)  execution  to  me  directed, 
dated  —  —  A.  D.  18—,  and  issued  out  of  the  clerk's  office  of  the  district 

court  of  the  State  of  Iowa,  in  and  for county,  upon  a  judgment 

(or  judgment  and  decree  of  foreclosure)  rendered  in  said  court  on  the 

-  day  of  —    —  A.  D.  18 — ,  in  favor  of  —     — ,  and  against , 

for  the  sum  of dollars  debt,  and dollars  costs,  I  did  on  the 

—  day  of  —    —   A.  D.  18 — ,  levy  upon  the  following  described  real 
estate,  to-wit  (here  describe  the  land  levied  on),  as  the  property  of  the 

said  to  satisfy  the  said  execution  amounting  to  dollars 

debt,  and dollars  costs,  together  with  interest  and  accruing  costs 

thereon;  that  I  gave  four  weeks'  notice  of  the  time  and  place  of  selling 
said  real  property  under  said  execution,  by  posting  up  printed  (or  writ- 
ten) notices  thereof  at  three  public  places  in  said  county,  one  of  which 

was  at  the  court  house  in where  the  last  district  court  was  held, 

and  by  causing  two  publications  of  said  notice  to  be  made  in  the  (name 

of  paper),  a  newspaper  printed  at  in  said  county,  immediately 

before  th'e  time  of  sale;  that  in  pursuance  of  the  notice  of  sale,  as  afore- 
said, in  conformity  to  law  and  by  virtue  of  said  execution,  I  did  on  the 

—  day  of A.  D.  18 — ,  at  o'clock  in  the  noon  of 

said  day,  at  the  front  door  of  the  court  house  in ,  in  said  county, 

expose  and  offer  the  said  real  estate  for  sale  at  public  auction,  and  — 

then  and  there  bid  the  sum  of dollars  for  the  same,  (or  some  part 

thereof  as  the  case  may  bo),  and  that  being  the  highest  and  best  bid 
offered  for  said  real  estate  (or  some  part  of  it)  the  same  was  there 

openly  struck  off  and  sold  to  the  said ,  for  the  said  sum  of  — 

dollars,  who  then  and  there  paid  the  amount  of  his  said  bid  to  me  in 
cash.  Now,  unless  redemption  is  made  within  one  year  after  the  date 

of  said  sale,  according  to  law,  the  said ,  his  heirs  or  assignees,  will 

be  entitled  to  a  deed  for  the  said  real  estate,  sold  as  aforesaid  and  de- 
scribed as  follows,  to-wit  (here  describe  the  land  sold). 

In  witness  whereof,  I  have  set  my  hand  this  day  of  , 

A.  D.  18 —  (same  date  as  the  sale). 

,  sheriff  of county,  Iowa. 

§  1251,  Of  redemption  made  by  the  defendant.9 — 
In  no  case  where  the  defendant  has  taken  an  appeal  from 
the  district  or  superior  court,  even  though  no  super- 
sedeas  bond  has  been  filed,  or  when  he  has  stayed  exe- 
cution on  the  judgment,  can  he  redeem.  In  such  cases 
the  sale  is  absolute.  Subject  to  the  above  qualifications 
the  same  rights  of  redemption  exist  whether  the  sale  is 
made  on  a  general  or  special  execution.10 

»  Harrison  v.  Wilmering,  72-727.          10  Code,   Sec.   4045;    Lombard   v. 

Gregory,  90-682. 


476  REDEMPTION. 

Under  provisions  of  prior  law  it  was  held  that  the 
vendee  of  an  execution  defendant  whose  land  is  sold  on 
execution  sale,  as  such  vendee  may  redeem,  even  though 
his  vendor  has  taken  an  appeal  from  the  judgment;  but  in 
such  a  case,  if  such  vendee  has  become  the  owner  of  the 
land  and  is  in  possession  prior  to  the  sale,  he  can  not  re- 
deem.11 

Where  a  party  stays  a  judgment  before  a  justice  and 
a  transcript  is  afterward  filed  in  the  higher  court  and  an 
execution  issues,  and  a  sale  is  had  thereon,  such  sale  is 
absolute.12  The  defendant  may  redeem  within  one  year 
from  the  day  of  the  sale.13  Statutory  redemption  can 
only  be  effected  in  the  manner  and  within  the  time  fixed 
by  the  statute.14  If  the  appeal  is  not  perfected  until 
after  the  sale  the  right  of  redemption  exists.15  The 
grantee  of  an  execution  debtor  acquiring  the  interest  of 
his  grantor  after  the  right  of  a  junior  lien  holder  to  re- 
deem is  barred,  may  redeem  without  subjecting  the  prop- 
erty to  the  claims  of  such  junior  lien  holder.16  Redemp- 
tion by  a  surviving  widow  who  was  a  grantee  of  the  heirs 
of  the  deceased  execution  debtor,  cuts  off  the  lien  of  a 
junior  incumbrancer  who  was  a  party  to  the  action.17 
Land  sold  under  a  judgment  against  both  a  principal  and 
surety  may  be  redeemed  by  the  surety.18  If  the  debtor's 
right  of  redemption  is  sold  under  a  second  execution  he 
may,  within  the  time  for  redeeming  from  the  first  sale, 
redeem  from  both  sales.19  Under  the  code  of  1851  the 
sale  of  mortgaged  property  on  foreclosure,  cut  off  all 
right  of  redemption.  Redemption  was  required  to  be 
made  before  the  sale.20  When  a  judgmenthas  attached  as 
a  lien  on  real  estate  and  it  is  sold  by  the  judgment  debt- 

11  Thayerv.  Coldren,  57-110;  Sie-  50-116;   Hughes  v.  Feeter,  23-547; 
ben  v.    Decker,   53-24;    Dobbins  v.  Bradford  v.  Bradford,  60-201,  and 
Lusch,  53-304;   Brown  v.  Markley,  see  Fitzgerald  v.  Kelso,  71-731. 
58-689;    see    Munson    v.  Plummer,          14  Teabout  v.  Jaff ray,  74-28. 
59-120.  is  Fitzgerald  v.  Kelso,  71-731. 

12  Brown  v.  Markley,  58-689.  is  Moody  v.  Funk,  82-1. 

is  Code,  Sec.  4045;  Webb  v.  Wat-  IT  Bevans  v.  Dewey,  82-85. 

son,  18-537;  Mayer  v.  Farmers  Ek.,  is  Bleckman  v.  Butler,  77-128. 

44-212;  Hammersham  v.  Fairall,  44  is  Harrison  v.  Wilmering,  72-727. 

462;  McKissick  v.  Mill  Owners,  etc.,  20  Kramer  v.  Rebman,  9-114. 


§  1251.]  REDEMPTION.  477 

or  and  by  him  conveyed  by  deed  with  covenants  against 
incumbrances  and  of  warranty,  after  which  it  is  sold  on 
execution  issued  on  the  judgment,  it  is  held  that  the 
judgment  debtor  has  the  right  of  redemption  for  one 
year  from  the  date  of  sale  and  the  grantee  has  also  the 
right  to  redeem  as  a  subsequent  purchaser,  and  one  right 
is  no  bar  to  the  other.21  If  the  defendant  in  good  faith 
pays,  and  the  clerk  receives,  prior  to  the  expiration  of  the 
time  of  redemption,  an  ordinary  bank  check,  upon  which 
he  realizes  the  money,  though  after  the  expiration  of  the 
period  of  redemption,  the  money,  being  ready  to 
be  paid  to  the  holder  of  the  certificate  of  sale  promptly 
and  without  trouble  to  him,  the  payment  is  good.22 
When  the  defendant  has  no  right  of  redemption  a  judg- 
ment creditor  who  did  not  become  such  until  after  the 
sale  can  not  redeem.23  And  a  redemption  effected  by  a 
sub-agent  appointed  by  the  agent  is  valid  if  ratified  by 
the  principal.24  If  on  a  sale,  subject  to  redemption,  the 
sheriff  makes  a  deed  to  the  purchaser  instead  of  a  certifi- 
cate of  sale,  it  is  an  irregularity  which  will  not  deprive 
the  judgment  debtor  of  his  right  to  redeem.25  And  it 
was  held  that  when  the  debtor  or  his  assignee  redeemed 
land  from  a  sale,  it  again  became  subject  to  sale  for  the 
satisfaction  of  any  balance  of  the  judgment  under  which 
the  prior  sale  was  made,  which  remained  unsatisfied.26 
But  this  is  otherwise  when  the  redemption  is  made  by  a 
creditor  or  purchaser.27  When  a  debtor  conveyed  to  hi.s 
wife  his  right  of  redemption  and  furnished  her  the  money 
to  make  redemption  with  interest,  to  hinder  and  delay  his 
creditors,  the  land  so  redeemed  remained  subject  to  his 
debts.28 

The  word  defendant  as  used  in  section  3102  of  the  code 

21  Harvey  v.  Spaulding,  16-397.  Milliard,    14-128;    Peckenbaugh    v. 

22  Webb  v.  Watson,  18-537.  Cook,  61-477. 

23  Brown  v.  Markley,  28-689.  27  Clayton  v.  Ellis,  50-590;  Camp- 
2*Teucher  v.  Hiatt,  23-527.  bell  v.  McGinnis,  70-589;  Harms  v. 
25  Olmstead  v.  Kellogg,  47-460.  Palmer,  73-446;    Hardin  v.  White, 
20  Hayes  v.  Thode,  18-51;  Stine  v.  63-633. 

Chambless,  18-474;   Crosby  v.   El-         zs  Peckenburgh  v.  Cook,  61-477. 
kader    Lodge,    16-397;     Curtis    v. 


478  REDEMPTION.  [§1251. 

of  1873  was  held  to  mean  the  mortgagor.29  It  will  be 
observed  that  in  the  present  code  the  word  "debtor"  is 
used.  The  right  of  a  judgment  debtor  to  redeem,  it 
seems,  expires  within  a  year  from  the  date  of  sale,  wheth- 
er a  valid  deed  be  then  executed  or  not.30  The  legal 
estate  of  the  owner  is  not  divested  by  the  sale  until  the 
time  for  redemption  has  expired  and  a  deed  is  made  to 
the  purchaser;  and  a  judgment  recovered  against  him  in 
the  period  allowed  for  redemption  is  a  lien  on  his  interest 
in  the  land  and,  in  case  he  or  his  assignee  redeems  from 
the  prior  sale,  such  judgment  may  be  enforced  against  the 
property  so  redeemed,  although  the  holder  of  the  judg- 
ment failed  to  exercise  his  own  rights  of  redemption.31 
The  defendant's  right  of  redemption  may  be  levied  on 
and  sold  on  execution.32  The  right  of  the  defendant  to 
redeem  within  a  year,  can  not  be  extended  by  any  act  of 
his,  such  as  a  suit  to  redeem  without  more.33 

When  a  surety  does  not,  as  provided  in  section  4003  of 
the  code,  object  to  a  stay  of  execution  being  granted,  he 
will  be  considered  as  having  assented  thereto,  and  if  it  is 
taken,  he  will  be  held  to  have  waived  the  right  to  re- 
deem his  property,  if  sold  under  such  judgment.34 

A  party  who  is  surety  in  a  debt  for  which  a  judgment 
is  rendered,  but  has  no  interest  in  the  property  sold,  is 
not  a  defendant  within  the  meaning  of  the  law  and  can 
not  redeem.35  And  where  the  owner  of  land  who  was 
entitled  to  redeem  the  same,  paid  the  clerk  the  amount 
which  said  clerk  claimed  was  necessary  to  effect  a  re- 
demption, but  by  error  the  sum  paid  was  too  small,  and 
afterward,  and  prior  to  the  expiration  of  the  period  of 
redemption,  the  grantee  of  the  purchaser  at  the  sale  ob- 
tained a  deed  therefor,  it  was  held  in  an  action  to  cancel 
the  deed  and  certificate,  that  they  should  be  canceled  and 

29  Miller  v.  Ayres,  59-424.  ss  Hughes  v.  Feeter,  23-547. 

so  Connor   v.    Long,    63-295;    see  34  Chase    v.    Welty,    57-230;    but 

Curtis  v.  Millard,  14-128.  see  Okey  v.  Sigler,  82-94. 

si  Curtis  v.  Millard,   14-128;    see  ss  Miller    v.    Ayres,    59-424;    see 

Shimer  v.  Hammond,  51-401.  Brooks  v.  Keister,  45-303;    Bleck- 

32  Barnes    v.    Cavanagh,    53-27;  man  v.  Butler,  77-128. 
Crosby  v.  Elkader  Lodge,  16-399. 


§  1252.]  KEDEMPTION.  479 

the  owner  of  the  land  permitted  to  perfect  his  redemp- 
tion by  paying  the  additional  sum  necessary  with  ten  per 
cent,  interest  thereon  from  date  of  sale.36 

The  right  of  the  defendant  to  redeem  for  the  first  six 
months  after  the  sale  is  exclusive.37  As  to  right  of  pos- 
session.38 

§  1252.  "When  redemption  may  be  made  by  cred- 
itors.— If  no  redemption  be  made  by  the  defendant  with- 
in the  six  months  from  date  of  sale,  then  any  mortgagee 
or  creditor  of  the  defendant,  whose  demand  is  a  lien  on 
the  land  sold,  may  redeem  the  same  at  any  time  within 
nine  months  from  the  day  of  sale;  nor  can  the  time  to 
redeem  be  enlarged  by  the  consent  of  the  purchaser.39 
A  junior  mortgagee,  having  assigned  the  mortgage  as 
collateral  security  for  a  debt  of  his  own,  may  redeem 
from  a  sale  made  on  foreclosure  of  a  senior  mortgage, 
and  such  redemption  will  inure  to  the  benefit  of  the  as- 
signee of  the  junior  mortgage;  nor  will  the  action  of  the 
assignee  in  such  case,  in  refusing  to  ratify  the  acts  of  the 
assignor,  affect  his  rights  in  respect  to  redemption.40 
The  defendant  or  purchaser  of  the  land  only  can  object 
if  the  redemption  is  made  by  a  creditor  prior  to  the  ex- 
piration of  six  months  from  the  date  of  sale.4* 

The  right  of  judgment  creditors  to  ^em  from  sale  of 
land  of  their  debtor,  is  barred  in  nine  months  from  the 
date  of  the  sale  unless  exercised  by  some  creditor  within 
that  time.42  The  restriction  on  the  defendant  as  to  re- 
demption, when  he  takes  a  stay  of  execution,  or  appeals, 
does  not  apply  to  creditors  nor  to  a  vendee  of  the  execu- 
tion debtor.43  The  owner  of  a  claim  which  has  been  al- 
lowed and  established  against  the  estate  of  a  decedent 
may  redeem  by  making  application  to  the  district  court 

seWakefield  v.   Rotherham,   67-  say  v.  Delano,  78-350;  Bleckman  v. 

444.  Butler,  77-128;  Albee  v.  Curtis,  77- 

37  Code,  Sec.  4045.  644. 

as  Code,  Sec.  4045;  Swan  v.  Mit-  '  *o  Manning  v.  Markel,  19-103. 

chell,  82-307;  American  Inv.  Co.  v.  «  Wilson  v.  Conklin,  22-452. 

Farrar,  87-437.  42  George  v.  Hart,  56-706;   New- 

30  Code,  Sees.  4045-4046;    Newell  ell  v.  Pennick,  62-123. 

v.  Pennick,  62-123;    George  v.  Hart,  43  Sieben  v.  Becker,  53-24;  Tha- 

56-706;  Hum  v.  Hill,  70-38;   Lind-  yer  v.  Coldren,  57-110. 


480  EEDEMPTIOX.  [§ 

or  to  any  judge  of  the  district  where  the  real  estate  to  be 
redeemed  is  situated.  Such  application  will  be  heard 
after  notice  to  such  parties  as  said  court  or  judge  may 
direct  and  must  be  determined  with  due  regard  to  the 
rights  of  all  persons  interested.44 

The  holder  of  a  judgment  recovered  on  a  debt  contract- 
ed prior  to  the  acquisition  of  a  homestead,  may  redeem 
from  a. sale  of  such  homestead  though  the  judgment  rec- 
ord does  not  show  the  facts  making  the  judgment  a  lien; 
proof  of  such  facts  may  be  made  aliunde.45  But  an  exe- 
cution creditor  who  has  brought  in  the  property  under 
his  execution  does  not  have  a  lien  on  such  property  for 
any  unsatisfied  balance  of  his  claim,  and  neither  he  nor 
his  assignee  can  redeem  under  such  sale.46 

A  junior  lien-holder  not  made  a  party  to  the  foreclos- 
ure of  a  prior  mortgage  may  redeem  by  action  in  equity. 
Not  so,  however,  if  his  judgment  has  ceased  to  be  a  lien.47 
And  in  such  action  the  lien-holder  may  have  an  account- 
ing of  the  rents  and  profits,  and  have  them  applied  in 
satisfaction  of  the  mortgaged  debt  from  which  he  seeks 
to  redeem.48  Where  a  mortgage  is  foreclosed  for  one  in- 
stallment of  the  mortgaged  debt,  or  for  a  part  of  the  sum 
secured  by  the  mortgage,  and  the  land  sold  therefor,  the 
remedy  of  the  mortgagee  is  thereby  exhausted  so  far  as 
the  land  is  concerned;  and  he  can  not,  after  redemption 
of  the  land  b  '\e  mortgagor,  subject  the  land  to  the  pay- 
ment of  that  part  of  the  debt  remaining  unsatisfied,  and 
this  is  so,  though  the  mortgage  secured  different  notes, 
some  of  which  are  assigned  to  a  third  party;  and  the  as- 
signee of  the  mortgagor,  'prior  to  redemption,  and  who 
afterward  redeems,  acquires  title  to  the  premises  free 
from  the  lien  of  the  mortgage  for  any  unpaid  balance.49 

«  Code,  Sec.  4046.  lington  M.  L.  Assn.,  61-464;  Ayers 

«  Phelps  v.  Finn,  45-447.  v.  Adair  County,  61-728;    Long  v. 

4G  Clayton  v.  Ellis,  50-590;     see  Millet,  63  N.  W.,  190. 
Crosby  v.  Elkader  Lodge,  16-399;          4«  Bunce  v.  West,  62-80,  and  cases 

Barnes  v.  Cavanagh,  53-27;   Peck-  cited, 
enbaugh  v.  Cook,  61-477.  •*»  Escher    v.    Simmons,    54-269; 

4"  Jones     v.     Hartsock,     42-147;  Mrcklewait  v.  Rains, 58-605;  Harms 

American  Buttonhole,  etc.,  v.  Bur-  v.  Palmer,  61-483. 


§§  1253,    1254.]  EEDEMPTION.  481 

A  creditor  who  obtained  a  judgment  against  a  grantor, 
who  had  made  a  fraudulent  conveyance,  is  not  entitled  to 
redeem  from  execution  sale  of  the  property  fraudulently 
conveyed,  which  is  made  under  a  decree  obtained  by 
other  judgment  creditors,  subjecting  such  property  to 
the  lien  of  their  judgments.50  And  when  a  party  seek- 
ing to  redeem  was  one  of  several  plaintiffs  at  whose  suit 
the  property  in  question  was  in  equity  decreed  to  be 
subject  to  their  judgments  and  sold  to  satisfy  the  same, 
he  can  not  redeem.51  Prior  to  the  change  in  the  statute 
it  was  held  that  the  holder  of  a  claim  against  an  estate 
which  had  not  been  allowed  by  the  court  was  not  a  cred- 
itor so  as  to  be  entitled  to  redeem.52  After  a  sale  of  land 
on  foreclosure  on  a  claim  of  the  mortgagee,  he  can  not 
redeem  therefrom.53  Nor  can  an  assignee  of  a  portion  of 
the  mortgaged  debt  redeem  from  a  sale  on  foreclosure  of 
another  portion.54 

§  1253.     Who  is  a  creditor  under  the  statute. — Any 

creditor  whose  claim  becomes  a  lien  prior  to  the  expira- 
tion of  the  time  allowed  by  law  for  the  redemption  by 
creditors,  may  redeem,  and  a  mortgagee  may  thus  re- 
deem before  or  after  the  debt  secured  by  the  mortgage 
falls  due.55 

And  a  mortgagee  wh^se  mortgage  secures  a  liability 
which  is  only  contingent  and  may  never  ripen  into  a  cer- 
tainty is,  nevertheless,  a  creditor  and  entitled  to  re- 
deem.56 And  where  a  junior  judgment  creditor  pur- 
chases at  an  execution  sale,  in  satisfaction  of  a  senior 
judgment,  property  on  which  his  judgment  is  a  lien,  he 
may,  like  any  other  judgment  creditor,  redeem  the  prop- 
erty from  such  sale,  though  he  thereby  redeems  from 
himself.57 

§  1254.    Of  redemption  by  the  holder    of   a    me- 

60  Rowland  v.  Knox,  59-46.  54  Harms  v.  Palmer,  61-483. 

Bi  Hayden  v.  Smith,  58-285;   see         ™  Code,  Sec.  4046. 
Clayton  v.  Ellis,  50-590.  BB  Crossen  v.  White,  19-109. 

52  Byer  v.  Healy,  84-1.  57  Citizens     Sav.     Bk.,     etc.,     v. 

53  Todd  v.  Davy,  60-532,  and  cases  Percival,  61-183. 
cited. 

Vol.  n—31 


482  BEDEMPTION.  [§  1255. 

chanic's  lien. — A  mechanic's  lien  before  judgment  is  not 
of  suck  a  character  as  to  entitle  the  holder  to  redeem.58 
And  in  proceedings  to  establish  a  mechanic's  lien  upon 
real  property  which  had  been  sold  under  a  decree  of  fore- 
closure since  the  claim  accrued,  where  the  mortgagor 
and  wife,  who  had  parted  with  the  equity  of  redemption, 
were  the  only  parties  defendant,  it  was  held  that  the 
holder  of  the  mechanic's  lien  and  claim  was  not  entitled 
to  redeem  from  the  foreclosure  sale.59 

§  1255.  Of  redemption  in  equity. — The  right  of  re- 
demption by  suit  in  equity  in  proper  cases  is  not  affect- 
ed by  the  provisions  of  the  statute  determining  when  re- 
demption may  be  made  and  it  has  often  been  held  that 
one  holding  a  junior  lien,  who  is  not  made  a  party  to  the 
foreclosure  of  a  prior  lien,  may,  by  proceedings  in  equity, 
be  permitted  to  redeem.60  But  the  holder  of  a  junior 
judgment,  who  was  not  made  a  party  to  the  foreclosure 
of  a  prior  mortgage,  because  his  judgment  was  not  in- 
dexed, and  said  mortgagee  had  no  actual  notice  of  said 
judgment  can  not  redeem.61  Where  the  judgment  debt- 
or in  a  mortgage  foreclosure  paid  a  part  of  the  judgment, 
but  was  not  credited  for  it,  and  the  land  was  sold  for  the 
whole  judgment,  and  bid  in  by  the  judgment  creditor 
and  the  judgment  debtor  did  not  within  the  year  offer  to 
redeem  by  paying  the  balance  justly  due,  it  was  held  he 
could  not  invoke  the  aid  of  a  court  of  equity.62  When 
in  an  action  to  redeem  from  a  foreclosure  sale  of  land  be- 
cause of  irregularities  in  the  appointment  of  appraisers, 
an  order  was  made  fixing  the  time  within  which  plaintiff 
might  redeem,  he  was  not  entitled  to  have  brought  into 
court  for  his  use,  whether  he  redeemed  or  not,  a  mort- 
gage for  the  purchase  money  held  by  the  defendants 
from  one  to  whom  they  had  sold  after  their  purchase  at 
the  foreclosure  sale,  and  who  was  not  shown  to  have  had 

BS  Code,  Sec.  4046.  si  sterling  Mfg.  Co.  v.  Earley,  69- 

59  Spink  v.  McCall,  52-432.  94. 

so  American  Buttonhole,  etc.,  v.         ez  McConkey  v.  Lamb,  71-636. 
B.   M.   L.   Assn.,   68-327;    Jones  v. 
Hartsock,  42-147. 


§§1256,    1257.]  EEDEMPTION.  483 

any  notice  of  the  irregularities  complained  of.68  One 
whose  land  is  wrongfully  sold  without  redemption  and 
for  an  inadequate  price  may  have  such  sale  set  aside  in 
equity.64  Where  a  junior  mortgagee  whose  mortgage 
was  recorded,  was  not  made  a  party  to  the  foreclosure 
of  the  senior  mortgage,  the  fact  that  after  the  foreclos- 
ure sale,  and  before  the  expiration  of  the  statutory 
time  to  redeem  therefrom  he  bought  the  land  at  a  sale 
under  foreclosure  of  his  own  mortgage  for  the  full 
amount  of  his  judgment  will  not  preclude  him  from  suing 
in  equity  to  redeem  from  the  sale  under  the  senior  mort- 
gage.65 

§  1256.    What  law  is  applicable  to  the  sale. — A 

sale  of  real  property  after  the  taking  effect  of  the  code  of 
1873,  under  a  judgment  rendered  prior  to  that  time,  must 
conform  to  the  law  in  force  at  the  time  the  judgment  was 
rendered,  which  gave  the  debtor  the  right  to  elect  wheth- 
er the  property  should  be  appraised  before  the  sale,  or 
sold  subject  to  redemption.66  And  where  the  judgment 
was  rendered  after  that  code  took  effect  upon  a  debt  con- 
tracted before  that  time,  the  sale  must  be  made  under  the 
provisions  of  such  code.67 

§  1257.  Of  creditors  redeeming  from  each  other. 
—Creditors  having  the  right  of  redemption  may  redeem 
from  each  other  within  the  time  heretofore  stated.68 

Whenever  a  senior  creditor  redeems  from  a  junior  cred- 
itor the  latter  may  in  return  redeem  from  the  former, 
and  so  on,  as  long  as  the  land  is  taken  from  him  by 
virtue  of  a  paramount  lien.69 

After  the  expiration  of  nine  months  from  the  day  of 
sale,  the  creditors  can  no  longer  redeem  from  each  other, 
except  as  herein  explained,  but  the  debtor  may  still  re- 
deem at  any  time  within  a  year  from  the  date  of  sale.70 

«s  Hall  v.  Ellis,  31-86.  «s  Code,    Sec.    4047;    Seevers    v: 

e*  Fitzgerald  v.  Kelso,  71-731.  Wood,  12-295;  Phelps  v.  Finn,  46- 

es  McCormick  Harv.  Men.  Co.  v.  447. 

Llewellyn,  65  N.  W.,  412.  69  Code,  Sec.  4052.     . 

66  Holland  v.  Dickerson,  41-367.  TO  Code,  Sec.  4053. 

"  Babcock    v.    Gurney,    42-154; 
Fonda  v.  Clark,  43-300. 


484  REDEMPTION.  [§§  1258,    1259. 

§  1258.  Of  computing  the  time  of  redemption.— 
In  computing  the  time  of  redemption,  the  first  day,  being 
the  day  of  the  sale,  should  be  excluded,  and  the  right  of 
redemption  exists  until  the  last  moment  of  the  same  day 
of  the  succeeding  year.71 

§  1259.  Of  the  terms  of  redemption. — The  terms  of 
redemption  when  made  by  a  creditor  in  all  cases  will  be 
the  reimbursement  of  the  amount  bid  or  paid  by  the  hold- 
er of  the  certificate,  including  all  costs,  with  interest  the 
same  as  the  lien  redeemed  from  bears,  on  the  amount  of 
such  bid  or  payment,  from  the  time  thereof,  but  where  a 
mortgagee  whose  claim  is  not  yet  due  is  the  person  from 
whom  the  redemption  is  thus  to  be  made,  he  shall  re- 
ceive on  such  mortgage,  only  the  amount  of  the  principal 
thereby  secured  with  unpaid  interest  thereon  to  the  time 
of  such  redemption.  The  terms  of  redemption  when 
made  by  the  title  holder  will  be  the  payment  into  the 
clerk's  office  of  the  amount  of  the  certificate  and  all  sums 
paid  by  the  holder  thereof  in  effecting  redemptions,  add- 
ed to  the  amount  of  his  own  lien,  or  the  amount  he  has 
credited  thereon,  if  less  than  the  whole,  with  interest 
at  contract  rate  on  the  certificate  of  sale  from  its  date, 
and  upon  sums  so  paid  by  way  of  redemption  from  date 
of  payment,  and  upon  the  amount  credited  on  his  own 
judgment  from  the  time  of  said  credit,  in  each  case  in- 
cluding costs.72  But  when  a  senior  creditor  thus  re 
deems  from  his  junior  he  is  required  to  pay  off  only  the 
amount  of  those  liens  which  are  paramount  to  his  own 
with  interest  and  costs  appertaining  to  such  liens.73  The 
holder  of  a  junior  mortgage  made  defendant  in  a  fore- 
closure proceeding,  may  redeem  after  sale  from  the  hold- 
er of  the  senior  mortgage,  who  has  bid  in  the  property 
for  less  than  the  mortgage  debt  by  paying  the  amount 
bid  by  such  purchaser  with  interest  and  costs.  He  need 
not  pay  the  whole  mortgage  debt.74  But  this  rule  is  ap- 

TiTeucher  v.  Hiatt,  23-527.  "Tuttle  v.  Dewey,  44-306;  Hayes 

72  Code,  Sees.  4050,  405L  v.  Thode,  18-51;    Iowa  County  v. 

73  Code,  Sec.  4048.  Beeson,  55-262. 


§  1259.]  EEDEMPTION.  485 

plicable  only  to  statutory  redemptions,  not  to  those  made 
in  equity.75 

In  redeeming  from  an  execution  creditor,  who  has  pur- 
chased the  property  at  the  sale,  the  debtor  need  only  pay 
the  amount  bid  by  such  creditor  and  any  portion  of  the 
judgment  remaining  unsatisfied  is  not  a  lien  on  the  prop- 
erty sold.76  The  owner  of  a  homestead  mortgaged  for 
the  purchase  money  can  not,  by  redeeming  from  a  fore- 
closure sale  for  a  part  of  the  judgment  only,  hold  the  land 
free  from  the  lien  of  the  unsatisfied  portion  thereof.77 
When  one  redeems  from  a  sale  under  a  judgment  which 
by  mistake  was  rendered  for  too  small  a  sum  he  need  only 
tender  the  amount  for  which  the  property  was  bid  off 
with  interest  and  costs.78  There  is  no  distinction  be- 
tween the  debtor  and  creditor  as  to  the- matter  of  making 
redemption,  and  the  terms  "his  own  lien"  used  in  the 
statute  refer  to  the. lien  of  the  holder  and  not  of  the  re- 
demptioner.79 

A  junior  creditor  may,  in  all  cases,  prevent  a  redemp- 
tion by  the  holder  of  the  paramount  lien  by  paying  off 
that  lien,  or  by  leaving  with  the  clerk,  beforehand,  the 
amount  necessary  to  do  so.80 

And  the  junior  creditor  may  redeem  from  a  senior 
judgment  creditor.81 

A  junior  judgment  creditor,  who  purchases  and  takes 
an  assignment  of  the  certificate  of  sale  from  his  senior 
creditor,  to  whom  the  land  has  been  sold,  will  be  regard- 
ed as  a  redemption  creditor  within  the  meaning  of  the 
statute,  and  to  entitle  a  creditor  or  lien-holder  junior  to 
him  to  redeem  the  property  from  such  sale,  he  must  pay 
not  only  the  amount  for  which  it  was  sold,  but  also  the 
amount  of  the  other  superior  judgment  liens  held  by  the 
person  thus  holding  the  certificate  of  sale  by  assign- 
ment.82 A  redemption  after  six  and  prior  to  nine  months 

78  Iowa  County  v.  Beeson,  55-262.  78  Day  v.  Cole,  44-452. 

78  Clayton   v.    Ellis,    50-590;    see  79  Clayton  v.  Ellis,  50-590. 

Barnes  v.  Cavanagh,  53-27;   Cros-  so  Code,  Sec.  4049. 

by  v.  Elkader  Lodge,  16-399.  si  Code,  Sec.   4049. 

77  Campbell  v.  McGinnis,  70-589.  82  Goode  v.  Cummings,  35-67. 


486  KEDEMPTION".  [§  1260. 

of  the  sale  can  be  made  by  the  parties  without  the  aid  of 
the  clerk  and  when  they  do  what  in  law  is  necessary  to 
constitute  a  redemption  the  act  will  be  so  treated.83 
What  acts  will  amount  to  an  equitable  assignment  of  the 
certificate.84 

§  1260.  Same.— Section  4056  requiring  a  lien-holder 
in  redeeming  to  pay  the  amount  necessary  to  redeem  into 
the  clerk's  office,  applies  only  to  redemptions  made  after 
the  expiration  of  nine  months  from  the  date  of  sale,  and 
not  to  redemptions  made  within  the  nine  months,  which 
may  be  made  by  paying  the  proper  amount  directly  to 
the  creditor,  and  taking  an  assignment  of  the  certificate 
of  sale.85  The  purchaser  of  a  junior  judgment,  before  the 
formal  assignment  thereof,  and  before  the  expiration  of 
six  months  from  the  day  of  sale,  who,  intending  to  re- 
deem, pays  to  the  purchaser  of  the  land  the  amount  of 
his  claim,  and  takes  an  assignment  of  the  certificate  of 
sale,  though  his  redemption  may  be  informal,  is  still  en- 
titled to  be  regarded  as  a  purchaser  and  holder  of  the 
certificate;  and  a  judgment  creditor  whose  lien  is  in- 
ferior to  his,  in  order  to  redeem,  must  pay  such  holder 
the  amount  of  this  certificate  as  well  as  the  amount  of 
his  judgment.86  The  holder  of  a  junior  mortgage  who  is 
made  a  defendant  in  an  action  to  foreclose  a  senior  one, 
has  the  right  to  redeem  after  sale  by  paying  the  amount 
bid,  with  interest,  within  the  time  allowed  by  law,  not- 
withstanding the  amount  so  bid  is  less  than  the  amount 
of  the  mortgage  debt.87  The  purchaser  of  real  estate 
under  a  judgment  may  redeem  from  a  prior  mortgage  be- 
fore its  foreclosure.88  And  a  purchaser  of  mortgaged 
lands,  whose  deed  is  recorded  at  the  time  of  the  begin- 
ning of  the  action  to  foreclose,  will  not  be  bound  by  the 
foreclosure  proceedings  unless  made  a  party  thereto;  but 
has  the  right  to  redeem  by  paying  the  mortgaged  debt, 

ss  Lamb  v.  Feeley,  71-742;  West         ss  Goode  v.  Cummings,  35-67. 
v.    Fitzgerald,    72-306;     Lamb    v.          se  Wilson  v.  Conklin,  22-452;  see 

West,  75-399.  Rush  v.  Mitchell,  71-333. 

34  Gilbert    v.    Husman,    76-241;          ST  Tuttle  v.  Dewey,  44-306. 
Byer  v.  Healy,  84-1.  ss  Hammond  v.  Leavitt,  59-407. 


§  1261.]  REDEMPTION.  487 

though  he  is  not  entitled  to  a  judgment  for  the  possession 
of  the  premises.89 

The  amount  necessary  to  redeem  in  an  action  by  a 
mortgagor  who  was  not  made  a  party  to  a  foreclosure 
suit  from  a  sale  under  such  foreclosure,  must  be  deter- 
mined with  reference  to  both  the  right  to  rents  and  the 
liability  to  pay  for  improvements,  and  while  it  is  the  gen- 
eral rule  that  such  a  redemptioner  need  not  pay  for  per- 
manent improvements,  yet  it  is  held  that  as  against  a 
purchaser  in  possession  in  good  faith,  under  the  belief 
that  he  is  the  sole  owner,  with  the  consent,  ex- 
press or  implied,  of  the  junior  lien-holder,  or  when 
the  latter  has  for  a  considerable  time  failed  to 
assert  his  rights  to  redeem,  he  must,  if  he  re- 
deems, pay  for  permanent  improvements  which  have 
been  made.90  When  the  judgment  in  a  foreclosure 
proceeding  directed  the  sale  of  the  property  and  provid- 
ed that  the  proceeds  of  sale  should  be  applied  in  satis- 
faction of  the  judgment  and  costs,  and  that  any  balance 
should  be  applied  in  satisfaction  of  notes  secured  by  the 
same  mortgage,  but  not  due,  and  the  tract,  eighty  acres, 
was  offered  en  masse,  and  bid  in  by  the  plaintiff  in  exe- 
cution for  more  than  sufficient  to  pay  the  judgment,  but 
he  had  not  paid  the  amount  into  court;  the  defendant,  it 
was  held,  could  not  redeem  by  paying  the  amount  of  the 
judgment  only,  but  that  he  must  pay  the  full  amount  bid 
at  the  sale.91  The  subject  of  redemption  as  applied  to 
the  priority  of  liens  in  particular  cases,  is  further  dis- 
cussed in  the  cases  below  cited.92 

§  1261.  Who  obtains  the  property. — Unless  the  de- 
fendant redeems  within  one  year  the  purchaser  or  the 
creditor  who  last  redeemed  prior  to  the  expiration  of  the 

sa  Porter  v.  Kilgore,  32-379.  34;    Bacon  v.  Cotterell,  13  Minn., 

»o  Barrett   v.    Blackmar,   47-565;  194;    Roberts  v.   Fleming,   53   111., 

American  Buttonhole,  etc.,  v.  B.  M.  196. 

L.  Assn.,  68-326;     Montgomery    v.  »i  Williams  v.  Dickerson,  66-105. 
Chadwick,  7-114;    Mickles  v.   Dill-  »z  Gorder  v.  Lundy,  66-448;  Dick- 
age,  17  N.  Y.,  80;  Green  v.  Dixon,  9  erman  v.  Lush,  66-444. 
Wis.,  532;  Troost  v.  Davis,  31  Ind., 


488  REDEMPTION.  [§  1261. 

nine  months  from  the  date  of  the  sale,  will  hold  the  prop- 
erty absolutely.93 

And  in  case  the  land  is  thus  held  by  a  redeeming  cred- 
itor his  lien  and  the  claims  out  of  which  it  arose  will  be 
held  to  be  extinguished  unless  he  pursues  the  following 
course.94  If  he  is  unwilling  to  hold  the  property  and 
credit  the  debtor  thereon  the  full  amount  of  his  lien,  he 
must  state  the  utmost  amount  he  is  willing  to  credit  him 
with.  If  the  amount  paid  to  the  clerk  is  in  excess  of  the 
prior  bid  and  liens,  he  must  refund  said  excess  to  the 
party  paying  the  same,  and  enter  each  such  redemption 
made  by  a  lien  holder  upon  the  sale  book,  and  credit  upon 
the  lien,  if  a  judgment  in  the  court  of  which  he  is  clerk, 
the  full  amount  thereof,  including  interest  and  costs,  or 
such  less  amount  as  the  lien-holder  is  willing  to  credit 
therein,  as  shown  by  the  affidavit  filed.95  When  a  junior 
judgment  creditor  redeemed  from  a  sale  under  a  senior 
judgment,  and  filed  with  the  clerk  within  the  time  re- 
quired, a  statement  of  the  amount  he  was  willing  to 
credit  on  his  judgment,  which  statement  the  clerk  failed 
to  enter  on  the  sale-book  until  after  ten  days  from  the  ex- 
piration of  nine  months  after  the  day  of  sale,  such  neglect 
of  the  clerk  did  not  invalidate  the  lien  of  the  junior  judg- 
ment.96 When  the  debtor  has  actual  notice  of  the  filing  of 
the  statement  he  suffers  no  prejudice  from  want  of  con- 
structive notice;  no  particular  form  of  statement  is  re- 
quired. It  will  be  sufficient  if  it  indicate  clearly  the  amount 
he  is  willing  to  credit  on  his  judgment.97  When  a  national 
bank  holding  a  second  mortgage  procured  an  assign- 
ment of  the  certificate  of  purchase  issued  under  a  judicial 
sale  of  the  property  under  the  first  mortgage,  and  at  the 
expiration  of  the  period  of  redemption  took  a  sheriff's 
deed,  no  entry  having  been  made  in  the  sale-book,  it  was 
held  the  transaction  was  a  purchase,  and  not  a  redemp- 
tion.98 The  omission  to  file  the  statement  above  men- 

93  Code,  Sec.  4054.  »«  Craig  v.  Alcorn,  46-560. 

e*  Code,  Sec.  4055;  Lamb  v.  Fee-  »?  Craig  v.  Alcorn,  46-560. 

ley,  71-742.  »8  Streeter  v.  First  Nat'l  Bk.,  etc., 

es  Code,  Sec.  4056.  53-177. 


§  1262.]  EEDEMPTION.  489 

tioned  will  not  prejudice  the  right  of  other  creditors  to 
redeem,  nor  defeat  the  right  of  the  debtor  to  demand  the 
extinguishment  of  all  claims  of  the  creditor  so  failing  to 
file  his  statement."  Whether  a  senior  lien-holder  may 
redeem  from  a  junior  who  has  already  redeemed  from 
him,  quaere.1 

§  1262.  Of  the  mode  of  redemption. — The  mode  of 
redemption  by  a  lien-holder  is  by  paying  into  the  clerk's 
office  the  amount  necessary  to  effect  the  same,  computed 
as  heretofore  stated,  and  filing  therein  his  affidavit  or 
that  of  his  agent  or  attorney,  stating  as  nearly  as  prac- 
ticable the  nature  of  his  lien  and  the  amount  due  and 
unpaid  thereon.2  If  he  is  unwilling  to  hold  the  property 
and  credit  the  debtor  thereon  the  full  amount  of  his  lien, 
he  must  state  the  utmost  amount  he  is  willing  to  credit 
him  with.  If  the  amount  paid  to  the  clerk  is  in  excess 
of  the  prior  bid  and  liens,  he  must  refund  the  excess  to 
the  party  paying  the  same,  and  enter  each  such  redemp- 
tion made  by  a  lien-holder  upon  the  sale  book,  and 
credit  upon  the  lien,  if  a  judgment  in  the  court  of  which 
he  is  clerk,  the  full  amount  thereof,  including  interest 
and  costs,  or  such  less  amount  as  the  lien-holder  is  will- 
ing to  credit  therein  as  shown  by  the  affidavit  filed.3  Ex- 
cept as  otherwise  provided,  redemption  has  the  effect  of 
discharging  and  satisfying  the  whole  debt  and  lien  under 
which  it  is  made.4  And  further  as  to  the  effect  of  a  fail- 
ure to  credit  the  amount  a  redemptioner  is  willing  to 
allow  on  his  claim.5  The  provision  as  to  the  whole  of  the 
redemptioner's  claim  being  satisfied  unless  he  pursues 
the  course  prescribed  by  the  statute  applies  to  redemp- 
tions made  prior  to  the  expiration  of  the  nine  months  as 
well  as  to  those  made  after  that  time.6  The  clerk,  on 
such  payment  being  made  and  the  affidavit  filed,  when 
one  is  required,  must  give  the  person  making  such  re- 

99  Goode  v.  Cummings,  35-67.  B  Tharp  v.  Forrest,  76-195;  Mont- 

1  Phelps  v.  Finn,  45-447.  nelier  Savings  Bk.  v.  Arnold,  81- 

2  Code,  Sec.  4056.  158. 

3  Code,  Sec.  4056.  «  West  v.  Fitzgerald,  72-306. 
*  West  v.  Fitzgerald,  72-306. 


490  REDEMPTION.  [§§  1263,  1264,  1265. 

demption  a  receipt  for  the  money,  stating  the  purpose 
for  which  it  was  paid.  A  redeeming  creditor  is  entitled 
to  an  assignment  of  the  certificate  issued  by  the  sheriff 
to  the  purchaser  at  the  sale.7  Payment  to  the  clerk  by  a 
bank  check,  if  accepted  by  him,  will  be  good  in  redemp- 
tion.8 

§  1263.  Of  settling  controversies  as  to  right  to  re- 
deem or  as  to  the  amount  to  be  paid. — If  any  question 
arises  as  to  the  right  to  redeem,  or  the  amount  of  any 
lien,  the  person  claiming  such  right  may  deposit  the 
necessary  amount  therefor  with  the  clerk,  accompanied 
with  an  affidavit  as  heretofore  stated,  and  also  stating 
therein  the  nature  of  such  question  or  objection,  which 
shall  be  submitted  to  the  court,  or  a  judge  thereof  as 
soon  as  practicable,  upon  such  notice  as  it  or  he  may  pre- 
scribe, of  the  time  and  place  of  the  hearing  of  the  con- 
troversy, at  which  time  and  place  it  will  be  tried  upon 
such  evidence  and  in  such  a  manner  as  may  be  pre- 
scribed, and  the  proper  order  made  and  entered  of  record 
in  the  case  in  which  execution  issued  and  the  money  so 
paid  will  be  held  by  the  clerk  subject  to  the  order  thus 
made.9 

§  1264.  Of  redemption  from  sale  in  parcels  and  of 
the  interests  of  tenants  in  common. — When  property 
has  been  sold  in  parcels,  any  distinct  portion  may  be  re- 
deemed by  itself.10  In  making  redemption  of  a  distinct 
portion  of  the  property  sold  in  parcels,  it  is  necessary 
to  pay  the  entire  amount  of  the  judgment  under  which 
the  sale  was  made  and  which  is  a  lien  on  the  property. 
One  cannot  in  such  a  case  redeem  by  paying  a  propor- 
tionate amount  of  the  lien.11  And  when  the  interests  of 
several  tenants  in  common  are  sold  on  execution,  the 
undivided  portion  of  any,  or  either  of  them,  may  be  sepa- 
rately redeemed.12 

§  1265.  Of  the  rights  of  the  purchaser. — The  pur- 
chaser of  the  legal  title  of  land  at  sheriff's  sale  takes  the 

7  Code,  Sec.  4058.  10  Code,  Sec.  4059. 

»  Webb  v.  Watson,  18-537.  n  Case  v.  Fry,  91-132. 

»  Code,  Sec.  4057.  12  Code,  Sec.  4060. 


§§  1266,    1267.]  EEDEMPTION.  491 

land  free  of  any  claim  or  title  arising  under  any  unre- 
corded deed  or  a  mere  equity  of  which  he  had  no  actual 
notice  at  the  time  of  his  purchase  and  which  would  be 
invalid  as  against  an  ordinary  purchaser,  and  this  is  so 
both  at  law  and  in  equity;  and  a  judgment  creditor  pur- 
chasing at  sheriff's  sale,  as  above  stated,  is  a  purchaser 
within  the  meaning  of  code  section  2925,  and  in  the  ab- 
sence of  equitable  circumstances  is  entitled  to  the  same 
protection  as  any  other  bona  fide  purchaser.13 

But  the  purchaser  of  chattels  at  an  execution  sale 
takes  such  title  only  as  the  defendant  in  execution  had 
at  the  time  of  the  levy.14  A  tenant  in  possession  of  land 
sold  on  execution  under  a  lease  from  the  execution  de- 
fendant, has  no  better  right  than  his  lessor  and  is 
charged  with  notice  of  sale,  and  can  not  hold  the  land 
after  the  period  of  redemption  expires  for  the  purpose  of 
reaping  a  crop.15 

§  1266.  Of  assigning  the  right  to  redeem. — The 
rights  of  the  defendant  in  relation  to  redemption  are 
transferable  and  the  assignee  has  the  same  rights  with 
reference  to  redemption  that  his  assignor  had  prior  to 
the  assignment.16  And  the  purchaser  of  property  at  a 
sale  under  a  judgment  which  is  junior  to  a  ^mortgage, 
may  redeem  from  such  mortgage  before  its  foreclosure 
in  the  same  manner  as  the  debtor  might  have  re- 
deemed.17 

§  1267.  Of  the  sheriff's  deed.— If  the  defendant  or 
his  assignees  fail  to  redeem,  the  sheriff  then  in  office 
must,  at  the  end  of  the  year,  execute  a  deed  to  the  person 
who  is  entitled  to  the  certificate,  or  to  his  assignee,  and 
if  the  holder  of  the  certificate  is  dead  the  deed  must  be 
made  to  his  heirs,  but  the  property  will  be  subject  to  the 

is  Vannice    v.     Bergen,    16-555;          n  Rakestraw    v.    Hamilton,    13- 

Code,  Sec.  2925;  Bell  v.  Evans,  10-  147. 

353;    Evans  v.  McGleason,  18-150;          is  Wheeler  v.  Kirkendall,  67-612; 

Gower  v.   Doheney,  33-36;    Hallo-  Downard  v.  Groff,  40-597;  Martin  v. 

way  v.  Plainer,  21-121;  Butterfield  Knapp,  57-336. 

v.  Walsh,  21-97;  Wallace  v.  Bartle,          ie  Code,   Sec.  4061;     Stoddard  v. 
21-346;    Walker  v.  Eleton,   21-529;  Forbes,  13-296;    Robertson  v.  Mo- 
Jones  v.  Brandt,  59-332;    Curtis  v.  line,  etc.,  Wagon  Co.,  88-463. 
Millard,  14-128.  "  Hammond  v.  Leavitt,  59-407. 


492  REDEMPTION.  [§  1267. 

payment  of  the  debts  of  the  deceased  in  the  same  manner 
as  if  acquired  during  his  lifetime.18  The  sheriff  in  office 
when  a  certificate  of  sale  made  by  his  predecessor  is  pre- 
sented, is  the  proper  officer  to  make  the  deed;  it  can  not 
be  executed  by  a  sheriff  whose  term  of  office  has  ex- 
pired.19 As  the  estate  of  the  debtor  is  not  divested  until 
the  execution  of  the  deed,  any  crops  on  the  premises 
which  are  matured  do  not  pass  thereby,  although  they 
were  not  matured  at  the  time  the  purchaser  was  entitled 
to  his  deed ;  but  crops  sown  by  the  tenant  after  the  sale, 
and  which  can  not  be  harvested  before  a  deed  is  due, 
pass  to  the  purchaser  of  the  land.20  And  a  purchaser  at 
a  sale  is  entitled  to  rent  accruing  after  he  receives  his 
deed.21  Deeds  executed  by  the  sheriff  at  a  sale  on  execu- 
tion are  presumptive  evidence  of  the  regularity  of  all 
previous  proceedings  in  the  case,  and  are  admissible  in 
evidence  without  preliminary  proof,  nor  need  the  deed 
recite  the  execution,  and  the  description  in  the  deed  may 
cure  uncertainties  in  the  levy  and  return.22 

When  the  sheriff  makes  a  mistake  in  the  description 
of  the  land  in  a  deed,  the  purchaser,  or  those  claiming 
under  him,  may  have  it  corrected  in  equity.23  And  the 
sheriff  may  execute  a  deed  to  a  person  other  than  the 
bidder  at  the  sale  if  authorized  so  to  do  by  him.24  A  sale 
under  a  void  judgment  will  not  be  validated  by  recitals 
in  the  deed.25  A  sale  for  costs  which  have  been  satisfied 
under  a  prior  execution  is  void.26  If  one  not  entitled  to 
redeem  pays  money  for  that  purpose  and  procures  an  as- 
signment of  the  certificate  of  purchase,  he  is  entitled  to 
a  deed.27  The  purchaser  is  by  the  deed  vested  with  the 
ownership  of  the  premises  and  of  the  crops  then  grow- 


13  Code,  Sec.  4062.  431;   Foley  v.  Kane,  53-64;   Hum- 
is  Conger    v.     Converse,    9-554;  phry  v.  Beeson,  1  G.  Gr.,  199;  Hop- 
Code,  Sec.  4062.  ping  v.  Burnam,  2  G.  Gr.,  39. 

20  Everingham  v.  Braden,  58-133.          23  Ehelringer  v.  Moriarty,  10-78. 

21  Wheeler  v.  Kirkendall,  67-612;          24  Ehelringer  v.  Moriarty,  10-78. 
Townsend    v.    Isenberger,    45-670;          25  Cassidy  v.  Woodward,  77-354. 
Martis  v.  Knapp,  57-336.  26  Soukup  v.  Union  Inv.  Co.,  84- 

22  Code,  Sec.  4064;  Conger  v.Con-  448. 

verse,  9-554;  Deere  v,  M'cConnells,          27  Rush  v.  Mitchell,  71-333. 
15-269;    Childs  v.   McChesney,   20- 


§  1267.]  EEDEMPTION.  493 

ing  thereon  and  of  the  right  to  immediate  possession.28 
But  the  title  to  matured  crops  would  not  pass  to  the 
purchaser.29  The  deed  will  not  be  held  void  for  uncer- 
tainty of  description  in  a  suit  in  equity  brought  by  those 
claiming  adversely  thereto  to  quiet  the  title  to  the  land 
in  them,  when  it  appears  that  the  land  in  dispute  was 
the  land  which  was,  in  fact,  sold  by  the  sheriff  under  his 
writ,  although  it  was  defectively  described  in  the  deed; 
nor  will  such  deed  be  void  because  executed  by  a  dep- 
uty, or  if  issued  prior  to  the  expiration  of  the  period  of 
redemption;  but,  if  it  is  absolute  in  form  when  it  should 
be  a  certificate,  it  will  not  defeat  the  right  of  redemp- 
tion.30 

Ordinarily  the  following  form  of  a  deed  will  be  found 
sufficient: 

FORM  OF  SHERIFF'S  DEED. 

This  Indenture,  made  on  the day  of A.  D.  18 — ,  by  and 

between ,  sheriff  of county,  State  of  Iowa,  of  the  first  part, 

and ,  of  the  county  of ,  State  of ,  of  the  second  part, 

witnesseth: 

That  whereas,  by  virtue  of  a  general  (or  special)  execution  directed 

to  the  sheriff  of county,  Iowa,  and  dated  the day  of , 

18 — ,  and  issued  out  of  the  clerk's  office  of  the  district  court  of  the  State 
of  Iowa,  in  and  for county,  under  the  seal  thereof  upon  a  judg- 
ment (or  judgment  and  decree  of  foreclosure)  rendered  in  said  district 

court  on  the  day  of  A.  D.  18 — ,  in  favor  of  and 

against for  the  sum  of dollars  and cents  debt,  and 

dollars  and cents  costs,  the  said  ,  sheriff,  as  afore- 
said, did,  on  the  day  of ,  A.  D.  18 — ,  levy  upon  the  real 

estate  hereinafter  described  as  the  property  of  the  said  ,  defend- 
ant, to  satisfy  the  said  execution,  amounting  to dollars  and  — 

cents  debt,  and dollars  and cents  costs,  together  with  in- 
terest and  all  accruing  costs. 

And  whereas,  the  said ,  sheriff,  as  aforesaid,  after  the  levy 

upon  the  within  described  real  estate,  gave  four  weeks'  notice  of  the 
time  and  place  of  selling  the  same  under  said  execution,  by  posting  up 
printed  (or  written)  notices  thereof  at  three  public  places  in  said  — 

county,  one  of  which  was  at  the  court  house  in ,  where  the  last 

district  court  was  held,  and  by  causing  two  publications  of  said  notice 

28  Stanborough  v.  Cook,  83-705;          29  Everingham  v.  Braden,  58-133; 
Wheeler     v.     Kirkendall,     67-612;      Richards  v.  Knight,  78-69. 
Martin  v.  Knapp,  57-336;  Townsend          so  Hackworth  v.  Zollars,  30-433; 
v.  Isenberger,  45-670.  Olmstead  v.  Kellogg,  47-460;  War- 

field  v.  Woodward,  4  G.  Gr.,  386. 


494  BEDEMPTIOST.  [§  1267. 


to  be  made  in  the  (name  of  newspaper)  a  newspaper  printed  at , 

in  said  county,  immediately  preceding  the  day  of  sale. 

And  whereas,  the  said ,  as  sheriff  aforesaid,  in  pursuance  of 

the  notice  of  sale  aforesaid,  in  conformity  to  law  and  by  virtue  of  said 

execution,  did,  on  the  day  of A.  D.  IS — ,  at  the  hour  of 

o'clock,  in  the  noon  of  said  day,  at  (here  state  place  of 

sale)  in county,  Iowa,  expose  and  offer  for  sale  at  public  auction 

the  real  estate  hereinafter  described,  and  did  then  and  there  sell  the 

same  at  public  auction  to ,  for  the  sum  of dollars,  he  being 

the  highest  and  best  bidder  therefor. 

Whereupon  the  said  sheriff,  after  receiving  the  said  sum  of  money 
from  said  purchaser,  made  and  delivered  to  him  a  certificate  of  sale  as 
directed  by  law.  And  whereas,  the  time  allowed  by  law  for  redeeming 
said  premises  having  expired  without  any  redemption  thereof  having 
been  made. 

Now,  therefore,  this  indenture  witnesseth:     That  in  consideration 

of  the  premises  and  of  the  said  sum  of dollars,  so  bid  and  paid 

as  aforesaid,  the  receipt  whereof  is  here  acknowledged,  I,  the  said  —  — , 
sheriff  as  aforesaid,  party  of  the  first  part,  do  hereby  sell  and  convey 

unto  the  said  ,  party  of  the  second  part,  his  heirs  and  assigns 

forever,  the  following  described  real  estate  situated  in  county, 

and  State  of  Iowa  (being  the  same  real  estate  hereinbefore  referred  to), 
to- wit  (here  describe  it). 

The  intention  being  to  sell  and  convey  hereby  all  the  right,  title, 

interest  and  estate  which  the  said had  in  arid  to  said  premises  on 

the  -       -  day  of  A.  D.  18—. 

To  have  and  to  hold  the  said  real  estate  with  all  the  appurtenances 

thereunto  belonging  to  the  said ,  his  heirs  and  assigns  forever,  as 

fully  and  absolutely  as  the  said  party  of  the  first  part  by  virtue  of  the 
premises  might  and  could  sell  and  convey  the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set 

his  hand  this  —      -  day  of A.  D.  18—. 

,  sheriff  of county,  Iowa. 

State  of  Iowa,  ) 

County.    \    ' 

Be  it  remembered,  that  on  this day  of A.  D.  18 — ,  be- 
fore me  (name  of  officer),  a  notary  public  within  and  for  said  county, 

personally  appeared  ,  sheriff  of county,  Iowa,  personally 

to  me  known  to  be  the  identical  person  whose  name  is  subscribed  to  the 
foregoing  deed  as  grantor,  and  acknowledged  the  execution  thereof  to  be 
his  voluntary  act  and  deed  as  said  sheriff  for  the  purposes  therein  men- 
tioned. 

Witness  my  hand  and  seal  the  day  and  year  last  above  written. 
[Seal.]  ,  notary  public,  in  and  for county,  Iowa. 

If  the  equity  of  redemption  only  has  been  sold,  then  the 
deed  may  be  in  the  following  form : 


This  indenture  made  the A.  D.  18—,  by  and  between 


sheriff  of county,  Iowa,  of  the  first  part,  and ,  of  the  county 


§  1267.]  EEDEMPTION.  495 

of  ,  in  the  State  of  Iowa,  of  the  second  part,  witnesseth,  that 

whereas  by  virtue  of  the  general  execution  directed  to  the  sheriff  of 

—  county,  Iowa,  dated  the day  of ,  18 — ,  and  issued  out 

of  the  clerk's  office  of  the  district  court  of  the  State  of  Iowa,  in  and  for 

—  county,  under  the  seal  of  said  court,  upon  a  judgment  rendered 

in  said  district  court  on  the day  of ,  18 — ,  in  favor  of , 

and  against ,  for  the  sum  of dollars  and cents  debt, 

and  dollars  and  cents  costs,  the  said  sheriff,  as 

aforesaid,  did  on  the  day  of  '-,  18 — ,  levy  upon  the  real 

estate  hereinafter  described,  including  the  right  of  possession,  and  the 

right  and  equity  of  redemption  of  the  said in  and  to  said  lands 

(existing  under  a  sale  of  said  lands  on  the day  of  ,  18 — , 

by  virtue  of  an  execution  against  said  and  in  favor  of  -    — , 

issued  out  of  the  office  of  the  clerk  of  the  district  court  of  the  State  of 

Iowa,  on  a  judgment  rendered  in  said  court,  on  the day  of ) ; 

18 — ,  as  the  property  of  the  said defendant,  to  satisfy  the  said  exe- 
cution, amounting  to  dollars  and  cents  debt,  and  

dollars  and cents  costs,  together  with  interest  and  accruing  costs. 

And  whereas  the  said ,  sheriff,  as  aforesaid,  gave  four  weeks'  no- 
tice of  the  time  and  place  of  selling  said  real  estate  under  said  execution 
by  posting  up  printed  (or  written)  notices  thereof,  at  three  public  places 

in  said county,  one  of  which  was  at  the  court  house  in  — , 

where  the  last  district  court  was  held,  and  by  causing  two  publications  of 
said  notice  to  be  made  in  the  (name  of  newspaper),  a  newspaper  printed 

at ,  in  said  county,  immediately  preceding  the  date  of  sale,  and 

whereas  the  said ,  as  sheriff  aforesaid,  in  pursuance  of  the  notice 

of  sale  aforesaid,  in  conformity  to  law,  and  by  virtue  of  said  execution, 

did  on  the day  of ,  18 — ,  at  the  hour  of o'clock  in 

the noon  of  said  day,  at  the  court  house  in ,  in  said  county, 

expose  and  offer  for  sale  at  public  auction  the  real  estate*  hereinafter 
described,  and  did  then  and  there  sell  the  same  at  public  auction,  to 

one ,  without  redemption,  for  the  sum  of dollars,  he  being 

the  highest  and  best  bidder  therefor;    now,  therefore,  this  indenture 
witnesseth  that  in  consideration  of  the  premises,  and  of  the  said  sum  of 

dollars  so  bid  and  paid,  as  aforesaid,  the  receipt  whereof  is  hereby 

acknowledged,  I,  the  said ,  sheriff,  as  aforesaid,  party  of  the  first 

part,  do  hereby  sell  and  convey  unto  the  said ,  party  of  the  second 

part,  his  heirs  and  assigns  forever,  the  following  described  real  estate 

situated  in  the  county  of and  the  State  of  Iowa,  (being  the  same 

real  estate  hereinbefore  described,  and  here  describe  land,  and  then 
follow  with  the  words,  "including  the  right  of  possession  and  right  and 

equity  of  redemption  of ,"  etc.,  as  in  the  prior  part  of  this  form), 

to  have  and  to  hold  the  said  real  estate,  with  all  the  appurtenances 

thereunto  belonging  to  the  said ,  his  heirs  and  assigns  forever,  as 

fully  and  absolutely  as  the  said  party  of  the  first  part,  by  virtue  of  the 
premises,  might  and  could  sell  and  convey  the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set 

Ms  hand  this day  of ,  18—. 

,  sheriff  of county,  Iowa. 

(Add  acknowledgment  of  previous  form.) 


496  REDEMPTION.  [§§  1268,  1269. 

And  if  the  sale  is  of  a  leasehold  interest  in  land  these 
forms  can  be  readily  adapted  for  use  in  such  a  case. 

§  1268.  When  the  deed  is  constructive  notice.— 
The  purchaser  of  real  estate  on  execution  which  is  sub- 
ject to  redemption  need  not  place  any  evidence  of  his 
purchase  on  record  until  sixty  days  after  the  expiration 
of  the  full  time  for  redemption,  as  up  to  that  time  the 
publicity  of  the  proceedings  is  constructive  notice  of  the 
rights  of  the  purchaser.31  The  provision  requiring  no- 
tice applies  only  as  against  purchasers  from  the  judg- 
ment defendant.32  But  one  who  purchases  after  the  ex- 
piration of  one  year  and  sixty  days,  having  actual  notice, 
or  one  who  purchases  with  a  fraudulent  intent  to  defeat 
the  title  of  the  purchaser  at  the  execution  sale,  will  not 
be  protected.33  But  the  purchaser  in  good  faith,  with- 
out notice,  after  the  expiration  of  one  year  and  sixty 
days  will  hold  the  property  against  the  purchaser  at  the 
execution  sale  who  has  neglected  to  put  his  deed  on 
record.34 

§  1269.  Of  the  sheriffs  return.— The  sheriff  must 
make  a  full  and  complete  return  on  every  execution 
which  comes  into  his  hands  of  his  doings  thereon,  and 
file  the  same  with  the  clerk  of  the  court  out  of  which 
the  writ  issued,  within  seventy  days  from  the  date  of 
writ.  But,  as  has  been  seen,  if  the  levy  has  been  made 
within  the  seventy  days,  the  sale  may  be  completed  after 
that  time,  and  in  such  cases,  as  also  in  cases  where  the 
property  has  been  taken  from  him  and  his  right  to  its 
possession  is  in  litigation,  he  is  not  required  to  make  his 
return  within  the  seventy  days.  Every  act  of  the  officer 
done  under  the  execution  must  be  set  out  in  his  return; 
if  he  has  summoned  garnishees  or  taken  their  answers, 

si  Code,  Sec.  4063;   Churchill  v.         s*  Harrison    v.    Kramer,    3-543; 

Morse,  23-229;  Hultz  v.  Zollars,  39-  Churchill  v.  Morse,  23-229;    Hultz 

589;  Wood  v.  Young,  38-102;  Gard-  v.     Zollars,     39-589;     Gardner     v. 

ner  v.  Jaques,  42-577.  Jaques,  42-577;     Lindley  v.   Mays, 

32  Lindley  v.  Mays,  66-265.  66-265;  see  McGinnis  v.  Edjell,  39- 

33  Harrison    v.    Kramer,    3-543;  419;  Cushing  v.  Edwards,  68-145. 
Walker  v.  Schreiber,  47-529;  Rush 

v.  Mitchell,  71-333. 


§  1269.]  REDEMPTION.  497 

or  if  the  property  has  been  taken  from  him,  or  if  he  has 
been  enjoined  from  selling  it,  these  and  other  like  facts, 
so  far  as  they  exist,  should  be  set  out  in  the  return. 

Generally  the  sheriff's  return  should  be  in  the  follow- 
ing form: 

FORM  OF  SHERIFF'S  RETURN  ON  EXECUTION. 

I, sheriff  of county,  Iowa,  hereby  certify  and  return 

that  I  received  the  within  (or  annexed)  writ  of  execution,  on  the 

day  of A.  D.  18 — ,  at o'clock  in  the noon  of  said  day; 

that  by  virtue  thereoT,  I  did,  on  the day  of A.  D.  18 — ,  (or 

on  the  same  day)  levy  upon  the  property  of  said  ,  the  defendant 

herein,  described  as  follows  (here  describe  the  property,  each  tract  of 
land  or  each  article  of  personal  property),  and  after  making  said  levy 
I  gave  four  (or  three  weeks  in  case  of  personal  property)  weeks'  notice 
of  the  time  and  place  of  selling  said  (real)  property,  by  posting  up  writ- 
ten (or  printed)  notices  thereof,  in  three  public  places  within  my  coun- 
ty, one  of  which  was  at  the  place  where  the  last  district  court  was  held, 
and  by  causing  two  publications  of  said  notice  to  be  made  in  the  (name 

of  newspaper),  a  newspaper  printed  at  —     — ,  in  said  county  of , 

immediately  before  said  sale;    that  on  the day  of  A.  D. 

18 — ,  (twenty  days  before  the  day  of  sale),  I  served  the  said ,  who 

was  in  the  actual  possession  of  said  real  property,  with  written  notice, 
stating  that  I  had  levied  on  said  real  property  by  virtue  of  this  execu- 
tion, and  mentioning  the  time  and  place  of  said  sale,  a  copy  of  which 
is  attached  hereto  marked  exhibit  "A,"  and  made  part  of  this  return. 
(If  the  property  levied  on  is  personal  then  say)  I  further  certify  and 
return  that  for  the  purpose  of  ascertaining  the  value  of  said  property, 
on  the day  of A.  D.  18 — ,  I  caused  A  B  and  C  D,  two  dis- 
interested householders  of  the  neighborhood,  to  be  selected,  the  former 
by  said  defendant  and  the  latter  by  plaintiff  (or  as  the  case  may  be)  as 
appraisers  thereof,  who  then  and  there  made  and  delivered  to  me  an  ap- 
praisement of  said  (personal)  property,  in  writing,  signed  and  sworn 
to  by  them,  by  which  they  appraised  said  property  (here  state  the 
amount  of  the  appraisement  on  each  article  of  personal  property,  or  by 
reference  say)  as  shown  by  said  written  appraisement,  which  is  hereto 
annexed  marked  exhibit  "B,"  and  made  a  part  of  this  return.  And  I 
further  certify  and  return,  that  in  pursuance  of  said  notice,  I  did  on 

the day  of ,  18 — ,  at o'clock  in  the noon  of  said 

day,  that  being  the  time  appointed  for  said  sale,  at  (here  state  place 
of  sale)  expose  to  sale  at  public  auction  the  property  aforesaid,  to  the 
highest  and  best  bidder,  for  cash,  and  then  and  there  sold  (the  premises 
or  a  part  thereof,  as  the  case  may  be;  or  where  personal  property  is  sold, 
say  the  goods  and  chattels  to  the  persons  respectively  named  in  schedule 
"C"  hereto  annexed  and  made  a  part  of  this  return,  for  the  prices  therein 

shown,  they  being  the  highest  and  best  bidders  therefor)  to for 

the  sum  of dollars,  he  being  the  highest  and  best  bidder  therefor 

Vol.  11—32 


498  EEDEMPTION.  [§  1269. 

(if  the  property  Is  personal  and  does  not  sell  for  two-thirds  of  the  ap- 
praised value,  the  return  should  show  that  the  property  was  offered  for 
sale  at  public  auction  but  could  not  be  sold  for  two-thirds  of  its  value  or 
was  sold  for  one-half  the  value,  as  the  case  may  be),  who  then  and  there 

paid  to  me  the  said  sum  of dollars,  so  bid  by  him;    whereupon  i 

executed  to  the  said a  certificate  of  purchase  in  due  form  of  law  of 

the  said  sale,  and  I  return  said  execution  satisfied  (or  unsatisfied,  as  the 

case  may  be)  with  the  sum  of dollars  made  thereon,  less 

dollars,  sheriff's  costs  on  execution  retained  by  me.  (See  statement  in 
full  annexed  marked  exhibit  "D."  This  statement  will  be  found  follow- 
ing the  next  form.) 

,  sheriff  of county,  Iowa. 

If  the  right  of  possession  and  equity  of  redemption 
only  has  been  sold,  the  return  should  be  in  the  following 
form: 

FORM  OF  SHERIFF'S  RETURN  ON  EXECUTION. 

I, ,  sheriff  of county,  Iowa,  hereby  certify  and  return, 

that  I  received  the  annexed  execution  on  the day  of ,  18 — , 

at o'clock  in  the noon;   that  by  virtue  thereof,  I  did,  on  the 

same  day  (or  on  the day  of ,  18 — ),  levy  upon  the  property 

of  said  defendant ,  therein  described,  as  follows,  to-wit  (here  de- 
scribe the  real  estate  and  follow  "including  the  right  of  possession  and 

right  and  equity  of  redemption  of  the  said ,  existing  under  a  sale 

of  said  real  estate  on  the  day  of  ,  18 — ,  by  virtue  of  an 

execution  against  said ,  and  in  favor  of ,  issued  out  of  the 

office  of  the  clerk  of  the  district  court  of  county,  Iowa,  on  a 

judgment  rendered  in  said  court,  on  the day  of  ,  18 — ,  in 

favor  of ,  and  against  said ").    And  after  making  said  levy 

I  gave  four  weeks'  notice  of  the  time  and  place  of  selling  said  real  prop- 
erty, by  posting  up  printed  notices  thereof  in  three  public  places  within 
my  county,  one  of  which  was  at  the  place  where  the  last  district  court 
was  held,  and  by  causing  two  publications  of  said  notice  to  be  made 
in  the  (name  of  newspaper),  a  newspaper  printed  at ,  in  said  coun- 
ty of ,  immediately  before  said  sale;  that  on  the  day  of 

,  18 — ,  twenty  days  before  said  sale,  I  served  ,  who  was 

in  actual  possession  of  said  property,  with  written  notice  stating  that 
I  had  levied  on  said  real  property,  including  the  right  of  possession,  and 
the  right  and  equity  of  redemption,  as  aforesaid,  by  virtue  of  this  ex- 
ecution, and  mentioning  the  time  and  place  of  said  sale,  a  copy  of  which 
is  attached  hereto  marked  exhibit  "A,"  and  made  a  part  of  this  return; 
and  I  further  certify  and  return,  that  in  pursuance  of  said  notice,  I  did, 

on  the day  of ,  18—,  at o'clock  in  the noon  of 

said  day,  that  being  the  time  appointed  for  said  sale,  at  the  front  door 

of  the  court  house,  in ,  Iowa,  expose  to  sale  at  public  auction,  as 

by  law  required,  the  property  aforesaid  (and  there  being  no  bidders, 
I  then  adjourned  said  sale  for  three  days,  when  for  like  cause  I  again 


§  1269.]  REDEMPTION.  499 

adjourned  said  sale  for  three  days  till  the  -  day  of  -  ,  18  —  ), 
when  I  offered  the  said  property  at  public  outcry  in  parcels  as  by  law 
required,  to  the  highest  and  best  bidder,  for  cash,  (if  there  are  no  bids 
for  the  property  in  parcels,  then  the  return  should  state)  but  receiving 
no  bids  for  the  same  in  parcels,  I  then  offered  the  said  property  en 
masse,  and  I  then  and  there  sold  (here  describe  land  and  follow  as 
above,  "including,  etc.")  without  redemption,  to  -  ,  for  the  sum  of 
—  dollars,  he  being  the  highest  and  best  bidder  therefor,  who  then 
and  there  paid  me  the  sum  of  -  dollars,  bid  by  him,  whereupon  L 
executed  to  the  said  -  a  deed  in  due  form  of  law  for  the  said  real 
estate,  and  the  right  of  possession  and  the  equity  of  redemption  therein, 
and  I  return  this  execution  satisfied  (or  unsatisfied,  as  the  case  may  be), 
with  the  sum  of  -  dollars,  made  thereon,  less  -  dollars,  sher- 
iff's costs  of  execution  retained  by  me.  (See  statement  in  full  annexed 
marked  exhibit  "D.") 

-  ,  sheriff  of  --  county,  Iowa. 

The  exhibits  referred  to  in  the  return  on  execution 
should  be  properly  marked  and  attached  to  the  return 
and  made  a  part  of  it.  The  statement  referred  to  in  the 
forms  above  given  may  be  as  follows: 

STATEMENT  IN  FULLr—  "D." 


Amount  of  judgment  .........  18— 

Interest  at  -  per  centum  to  .  .  18  — 

Court  costs 

Sheriff's  costs 

Amount  due  .................  18  —     ........................ 

Amount  paid  ................  18  —      ....... 


I- 

Balance  due  after  1st  payment  ............  ..  ..................    $ 

Interest  to  ...................  18  —        ........................... 

Amount  due  .................  18  —      ........................... 

Amount  paid   ................  18  —      ........................... 

I- 

Balance  due  after  2d  payment  ..............................    $ 

Interest  to  ...................  18  —      ........................... 


Amount  due  on  execution  ----  188 
Amount  bid  by 


500  BEDEMPTION.  [§  1270. 

SHERIFF'S   FEES    IN    FULL.  DISPOSAL  OF  PROCEEDS. 

Service    $  $  Sheriff's   fees    retained. 

Posting  notices  Court  costs  paid  to  clerk. 

Mileage    Judgment  paid  to 

Notice  of  levy ,  

Notice  of  sale 

Publication  • 

Notice  to  choose  appraisers.  |         Total  amount  received. 

Notifying    appraisers 

Appraisal    

day's  sale 

• adjournment 

Certificate    . 

Sheriff's    deed 

Commission    


Total  $ 

,  sheriff  of county,  Iowa. 

§  1270.  Of  damages  for  injury  to  property,  etc.— 
The  purchaser  of  real  estate  sold  on  execution,  or  any 
person  who  has  succeeded  to  his  interest,  may,  after  his 
estate  becomes  absolute,  recover  damages  for  any  injury 
to  the  property  committed  after  the  sale,  and  before  pos- 
session is  delivered  under  the  deed.35 

»5  Code,    Sec.    4065;     Miller    v.      Bridge  and  Terminal  R.  Co.,  67  N. 
Ayres,  59-424;  Flickinger  v.  Omaha     W.,  372. 


CHAPTER  LXXIX. 

OF  REVIVOR  OF  JUDGMENTS. 

Seo.  1271.  When  judgments  will  be  revived. 

1272.  Of  the  sheriff's  duty. 

1273.  Of  the  affidavit. 

1274.  Of  execution  against  surviving  defendants. 

1275.  When  execution  may  be  quashed. 

1276.  Of  proceedings  when  all  the  defendants  are  dead. 

Section  1271.    When  judgment  will  be  revived. — 

The  death  of  any  or  all  of  the  joint  owners  of  a  judgment 
will  not  prevent  an  execution  being  issued  thereon,  but 
on  such  execution  the  clerk  must  indorse  the  fact  of  the 
death  of  those  who  are  dead,  and  if  all  are  dead,  the 
names  of  their  personal  representatives,  if  the  judgment 
passed  to  the  personal  representatives;  or  the  names  of 
the  survivor's  heirs,  if  the  judgment  was  for  real  prop- 
erty.1 And  a  levy  of  an  execution  after  the  death  of  the 
judgment  plaintiff  is  invalid  without  such  indorsement 
on  the  execution  and  a  sale  thereunder  can  be  enjoined.2 
So,  when  an  action  is  brought  by  mistake  in  the  name  of 
a  deceased  person,  and  judgment  is  rendered,  and  a  sale 
had  thereon,  the  proceedings  are  void.3  A  judgment 
against  a  decedent  may  be  revived  against  his  admin- 
istrator,4 but  not  by  the  creditors  suing  the  heirs.6  For- 
merly, judgments  were  revived  by  suing  out  a  writ  of 
scire  facias.6 

§  1272.  Of  the  sheriffs  duty.— The  sheriff,  in  act- 
ing on  an  execution  indorsed  as  above  provided,  must 
proceed  as  if  the  surviving  plaintiff  or  plaintiffs,  or  the 

1  Code,  Sec.  4067.  Daniels  v.  Smith,  58-577. 

2  Meek  v.  Bunker,  33-169.  »  Bridgman  v.  Miller,  50-392. 

s  White  v.  Secor,  58-533.  «  Von    Puhl     v.    Rucker,    6-187; 

*  Carnes  v.  Crandall,  10-377;  see      Vredenburgh  v.  Snyder,  6-39. 

501 


502  EEVIVOE    OF   JUDGMENTS.  [§§  1273-1276. 

personal  representatives  or  heirs,  were  the  only  owners 
of  the  judgment  upon  which  it  was  issued,  and  bonds 
taken  by  him  must  be  for  their  benefit.7 

§  1273.  Of  the  affidavit.— Before  making  the  in- 
dorsements above  stated,  an  affidavit  must  be  filed  with 
the  clerk  by  one  of  the  owners  of  said  judgment,  or  per- 
sonal representatives,  or  heirs,  or  their  attorney,  of  the 
death  of  such  owners  as  are  dead,  and  that  the  persons 
named  as  such  are  the  personal  representatives  or  heirs; 
and  in  case  of  personal  representatives,  they  must  also 
file  with  the  clerk  a  certificate  of  their  qualification,  ac- 
cording to  the  laws  of  this  State,  unless  their  appoint- 
ment is  by  the  court  from  which  the  execution  issues,  in 
which  case  the  record  of  such  appointment  will  be  suf- 
ficient evidence  of  the  fact.8 

§  1274.  Of  executions  against  surviving  defend- 
ants.—  When  a  part  of  the  joint  debtors  are  dead  exe- 
cution may  issue  against  the  survivors  and  their  prop- 
erty.9 But  execution  can  not  be  issued  against  a  de- 
ceased judgment  debtor  even  though  the  judgment  be 
rendered  in  an  attachment  proceeding  and  a  sale  of  land 
on  such  an  execution  is  void.10 

§  1275.  When  execution  may  be  quashed. — When 
the  names  of  the  personal  representatives  are  not  prop- 
erly stated  by  the  clerk  in  his  indorsement  on  the  execu- 
tion, any  debtor  in  such  judgment  may  move  to  quash 
the  execution  for  that  reason,  and  during  the  vacation  of 
the  court  he  may  obtain  an  injunction  on  making  it  ap- 
pear that  the  persons  named  are  not  entitled  to  the  judg- 
ment on  which  the  execution  was  issued.11 

§  1276.  Of  proceedings  when  all  the  defendants 
are  dead. — If  all  the  defendants  are  dead,  proceedings 
must  be  instituted  to  bring  in  their  personal  representa- 
tives; and  for  that  purpose  plaintiff  must  file  his  peti- 

T  Code,  Sec.  4068.  Boyle  v.  Maroney,  73-70;    Bull  v. 

s  Code,  Sec.  4069.  Gilbert,  79-547. 

»  Code,  Sec.  4071.  «  Code,  Sec.  4070;  Meek  v.  Bun- 

10  Welch     v.     Battern,  47-147;      ker,  33-169. 


§  1276.]  KEVIVOR    OF   JUDGMENTS.  503 

tion,  properly  verified,  and  must  set  forth  therein  the 
rendition  of  the  judgment,  that  it  is  unpaid,  the  amount 
due  thereon,  and  pray  for  an  execution  to  issue  against 
the  administrators  of  the  deceased. 
It  may  be  in  the  following  form: 

FORM  OF  PETITION  TO  REVIVE  JUDGMENT  AGAINST  AN  AD- 

MINISTRAT'OR. 

Title,    ) 
Venue.  V 

Plaintiff  states  that  on  the day  of ,  18 — ,  In  an  action 

pending  in  this  court,  wherein  he  was  plaintiff  and was  defend- 
ant, the  plaintiff  recovered  a  judgment  against  said  defendant  for  the 

sum  of dollars  and  costs  of  suit,  taxed  at dollars;  that  said 

judgment  has  not,  to  the  plaintiff's  knowledge,  information  or  belief, 
been  paid  or  satisfied,  and  that  there  is  now  due  thereon  the  sum  of 

dollars,  debt  and  interest,  and  dollars,  costs;    that  the 

said died  intestate  on  or  about  the day  of ,  18 — ,  and 

that  the  said  defendant  is  administrator  of  the  estate  of  said  decedent. 

Wherefore,  he  demands  judgment  that  execution  may  issue  on  said 
judgment  against  the  goods  and  chattels  of  said  deceased  in  the  hands 
of  his  said  administrator  and  against  the  lands  and  tenements  of  said 
estate,  to  satisfy  said  judgment,  with  interest  and  costs. 

,  attorney  for  plaintiff. 

(Add  verification.) 


CHAPTER  LXXX. 

OF  SHERIFF'S  SALE. 

Sec.  1277.  Of  notice  of  the  sale. 

1278.  Of  selling  without  notice. 

1279.  Of  the  time  and  manner  of  sale. 

1280.  Of  postponing  the  sale. 

1281.  Of  the  surplus  arising  from  the  sale. 

1282.  Of  proceedings  when  property  is  unsold,  etc. 

1283.  Effect  of  sale  without  notice  to  the  defendant. 

1284.  Of  plan  of  sale  by  defendant. 

1285.  When  sales  will  be  set  aside. 

1286.  When  sales  will  not  be  set  aside. 

1287.  Sales  may  be  set  aside  when  purchaser  falls  to  pay. 

1288.  Sales  set  aside  when  defendant  has  no  title,  etc. 

1289.  Of  the  rule  of  caveat  emptor. 

1290.  Of  the  disposition  of  money  and  choses  in  action. 

1291.  Of  satisfying  judgments  against  an  executor  or  decedent. 

1292.  Of  setting  off  mutual  judgments. 

1293.  Of  sale  of  leasehold  interest,  etc. 

1294.  Of  the  appraisement  of  personal  property. 

1295.  Of  the  sheriff's  return. 

1296.  Of  the  rights  of  the  purchaser,  and  who  may  purchase. 

1297.  Of  the  return  of  the  purchase  money — Canceling  satisfaction, 

etc. 

Section  1277.  Of  notice  of  the  sale.— The  sheriff 
must  give  four  weeks'  notice  of  the  time  and  place  of  sell- 
ing real  property,  and  three  weeks'  notice  in  case  of  the 
sale  of  personal  property.1  Notice  must  be  given  by 
posting  in  at  least  three  public  places  in  the  county,  one 
of  which  must  be  at  the  place  where  the  last  district 
court  was  held,  and  in  addition  to  the  posted  notices,  in 
case  of  sale  of  real  estate,  or  where  personal  property  to 
the  amount  of  two  hundred  dollars  or  upward  is  to  be 
sold,  there  must  be  two  weekly  publications  of  the  notice 

iCode,  Sec.  4023. 
504 


§§1278,  1279.]  SHERIFF'S  SALE.  505 

in  some  daily  or  weekly  newspaper  printed  in  the 
county,2  to  be  selected  by  the  party  causing  the  notice 
to  be  given,  and  the  compensation  for  such  publication 
will  be  the  same  as  is  provided  by  law  for  legal  notices. 
But  the  proprietor  of  a  newspaper  can  not,  by  man- 
damus, compel  the  publication  of  a  notice  in  his  paper.3 
§  1278.  Of  selling  without  notice.— If  the  sheriff 
sell  without  giving  the  notice  prescribed,  he  will  forfeit 
one  hundred  dollars  to  the  defendant  in  execution,  and 
will  be  liable  for  all  actual  damages  sustained  by  either 
party;  but  the  validity  of  the  sale  will  not  be  affected  by 
reason  of  the  sheriff's  failing  to  comply  with  the  law  in 
this  respect.4  The  purchaser  at  a  judicial  sale  is  author- 
ized in  assuming  that  the  judgment  and  levy  are  regu- 
lar; and  other  irregularities  will  not,  in  the  absence  of 
fraud,  affect  the  title  acquired  by  an  innocent  pur- 
chaser.5 The  statute  requiring  the  notice  of  the  sale  is 
directory.6  If  the  officer  sell  without  notice,  and  the 
property  brings  a  sum  equal  to  its  value,  and  the  pro- 
ceeds of  the  sale  are  applied  on  the  execution  and  costs, 
it  would  seem  that  the  plaintiff  sustained  no  actual  dam- 
ages.7 The  penalty  provided  by  statute  can  only  be  re- 
covered when  actual  damages  are  sustained.8 

§  1279.  Of  the  time  and  manner  of  sale. — The  sale 
must  be  at  public  auction,  between  the  hours  of  nine 
o'clock  in  the  forenoon  and  four  o'clock  in  the  afternoon, 
and  the  hour  of  the  commencement  of  the  sale  must  be 
fixed  in  the  notice.9  The  sheriff,  for  many  purposes,  is 
the  agent  of  both  parties,  and  he  is  invested,  subject  to 
the  statute,  with  a  sound  discretion  as  to  the  time,  place 
and  manner  of  sale.10  Improper  conduct  of  the  sheriff 
is  not  alone  sufficient  to  set  aside  the  sale  when  it  is  not 

2  Code,  Sec.  4024.  Hopping  v.  Burnham,  2  G.  Gr.,  39, 

s  Welch  v.  Board  of  Supervisors,         «  Cooley  v.  Wilson,  42-425. 
23-199.  TCoffey  v.  Wilson,  65-270;     En- 

4  Code,  Sec.  4027.  field  v.  Blyler,  67-295. 

s  Cooley  v.  Wilson,   42-425;    see         *  Same  as  No.  7. 
Cavender  v.  Heirs  of  Smith,  1-306;          »  Code,    Sec.    4028;    Swortzell    v. 

Shaffer  v.  Bolander,  4  G.  Gr.,  201;  Martin,  16-519. 
Burton  v.  Emerson,  4  G.  Gr.,  393;          10  Swortzell  v.  Martin,  16-519. 


506  SHERIFF'S  SALE.  [§  1280. 

shown  that  the  purchaser  was  connected  with  such  con- 
duct.11 And  it  will  be  presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  that  the  sale  was  made  as  pro- 
vided by  law.12  The  notice  of  sale  may  be  in  the  follow- 
ing form: 

FORM  OP  NOTICE  OF  SHERIFF'S  SALE. 

Notice  Is  hereby  given  that  by  virtue  of  a  general  (or  special)  execu- 
tion directed  to  me  from  the  clerk  of  the  district  court  of county, 

Iowa,  on  a  judgment  rendered  in  said  court  on  the day  of , 

18 — ,  in  favor  of ,  as  plaintiff,  and  against  (here  insert  names  of 

all  the  defendants),  as  defendants,  for  the  sum  of dollars  and 

costs,  taxed  at dollars  and  accruing  costs,  I  have  levied  upon  the 

following  described  real  estate  (or  personal  property),  as  the  property 
of  the  said  defendant  (naming  him),  to  satisfy  said  execution,  to-wit 
(here  describe  the  property  fully).  And  I  will  proceed  to  sell  said  prop- 
erty, or  so  much  thereof  as  may  be  necessary  to  satisfy  said  execution, 
with  costs,  and  accruing  costs  (if  real  estate,  say  subject  to  redemption), 
at  public  auction,  to  the  highest  and  best  bidder,  for  cash  in  hand,  on 

the day  of ,  18 — ,  in  front  of  the  court  house  in  ,  in 

county,  Iowa,  at  the  hour  of  o'clock  — .  M.,  of  said  day, 

when  and  where  due  attendance  will  be  given  by  the  undersigned. 

Dated  the  day  of ,  18—. 

,  sheriff  of county,  Iowa. 


-,  attorney  for  plaintiff. 


§  1280.  Of  postponing  the  sale. — When  there  are 
no  bidders,  or  when  the  amount  offered  is  grossly  inade- 
quate, or  when,  from  any  cause,  the  sale  is  prevented 
from  taking  place  on  the  day  fixed,  or  the  parties  so 
agree,  the  sheriff  may  postpone  the  sale  for  not  more 
than  three  days  without  giving  any  further  notice  of 
sale;  which  postponement  must  be  publicly  announced 
at  the  time  the  sale  was  to  have  been  made,  but  not  more 
than  two  such  adjournments  can  be  made,  except  by 
agreement  of  parties  in  writing  and  made  a  part  of  the 
return  upon  the  execution.13 

The  postponement  of  the  sale  is  a  matter  largely  in 
the  discretion  of  the  sheriff.14  The  fact  that  there  was 


11  Same  as  No.  10.  "  Code,  Sec.  4029. 

12  Cole  v.  Porter,  4  G.  Gr.,  510.  «  Swortzell  v.  Martin,  16-519. 


§  1281.]  SHERIFF'S  SALE.  50? 

one  adjournment  more  than  the  statute  authorized,  and 
that  the  time  was  extended  beyond  a  period  fixed  by  law, 
is  an  irregularity  which  can  only  be  taken  advantage  of 
when  prejudice  is  shown.15  But  the  adjournment  of  a 
sale  by  the  plaintiff's  attorney  is  a  gross  irregularity, 
and  such  adjourned  sale  is  void.16  And  when  there  are 
no  bidders,  or  the  amount  bid  is  grossly  inadequate,  the 
sheriff,  in  the  exercise  of  his  discretion,  should  ordinar- 
ily postpone  the  sale,  especially  if  the  debtor  so  requests, 
and  if  he  does  not  postpone  it,  it  may  be  set  aside  on 
proper  application,  made  in  due  time.17  A  postpone- 
ment of  a  sale  by  agreement  of  parties,  or  at  the  instance 
and  for  the  benefit  of  the  defendant  in  execution,  will 
not  render  the  sale  afterward  made  invalid  as  between 
the  parties.18  If  the  sheriff  postpones  the  day  of  sale, 
such  action  must  be  taken  on  the  day  set  for  the  sale, 
unless  the  parties  otherwise  agree.10 

§  1281.  Of  the  surplus  arising  from  the  sale.— 
When  the  property  sells  for  more  than  the  amount  re- 
quired to  be  collected,  the  overplus  must  be  paid  to  the 
debtor,  unless  the  sheriff  has  another  execution  in  his 
hands,  on  which  the  overplus  may  be  rightfully  applied, 
or  unless  there  are  liens  upon  the  property  which*  ought 
to  be  paid  therefrom,  and  the  holders  thereof  make  claim 
to  such  surplus  and  demand  application  thereon,  in 
which  case  the  officer  must  pay  the  same  into  the  hands 
of  the  clerk  of  the  district  court,  and  it  will  be  applied 
as  the  court  may  order.20  While  the  surplus  moneys 
arising  from  a  sale  of  lands  on  mortgage  foreclosure,  in 
the  sheriff's  hands  or  under  the  control  of  the  court,  be- 
long to  subsequent  lien-holders  in  the  order  of  their  pri- 
ority, yet,  when  the  execution  on  which  sale  is  made  fails 
to  direct  the  disposition  of  the  surplus,  and  the  sheriff, 
acting  in  good  faith  and  without  knowledge  of  such 

is  Reese  v.  Dobbins,"  51-282.  "  Long  v.  Valleau,  66  N.  W.,  195. 

ie  Wolf  v.  Van  Meter,  27-348.  20  Code,  Sec.  4030;  Payne  v.  Bill- 

IT  Same  as  No.  14.  lingham,  10-360;  Downard  v.  Cren- 

is  Cornell  v.  Ham,  4  G.  Gr..  455;  shaw,  49-296. 
Payne  v.  Billingham,  10-360. 


508  SHEBIFF'S  SALE.  [§  1282. 

liens,  applies  the  money  on  other  executions  in  his  hands 
against  the  mortgagor,  he  is  not  liable  therefor.21 

§  1282.  Of  proceedings  when  property  is  unsold, 
etc. —  If  the  property  levied  on  sells  for  less  than  is  re- 
quired to  satisfy  the  execution  the  judgment  holder  may 
order  out  another  execution  which  must  be  credited  with 
the  amount  of  the  previous  sale,  the  proceedings  of  the 
sheriff  on  the  second  execution  will  be  the  same  as  on 
the  first  one.22  When  the  property  is  unsold  for  want  of 
bidders,  and  subject  to  the  provisions  of  code,  section 
4041,  the  levy  still  holds  good,  and  if  there  be  sufficient 
time  it  may  be  again  advertised  and  sold  under  the  same 
execution,  or  the  execution  may  be  returned  and  one  is- 
sued commanding  the  officer  to  sell  the  property,  de- 
scribing it,  previously  levied  on,  to  which  a  clause  may 
be  added  that  if  such  property  does  not  produce  a  sum 
sufficient  to  satisfy  such  execution  the  officer  shall  pro- 
ceed to  make  an  additional  levy  on  which  he  must  pro- 
ceed as  on  other  executions,  or  the  plaintiff  may,  in  writ- 
ing, filed  with  the  clerk,  abandon  such  levy  upon  paying 
the  costs  thereof,  in  which  case  execution  may  issue  with 
the  same  effect  as  if  none  had  ever  been  issued.23  But 
such  second  levy  can  not  be  made  until  the  first  is  dis- 
posed of.24  A  sale  under  an  execution  which  has  ex- 
pired is  valid  if  the  levy  was  made  Avhile  the  execution 
was  in  force.25  This  second  execution  for  the  sale  of 
property  levied  on  under  prior  writ  is  in  the  nature  of  a 
venditioni  exponas,  and  it  may  be  in  the  following  form: 

FORM  OP  VENDITIONI  EXPONAS. 

The  State  of  Iowa. 

To  the  sheriff  of  county,  greeting: 

Whereas  by  our  writ  of  execution  bearing  date  the  day  of 

— ,  18 — ,  issued  upon  a  certain  judgment  rendered  in  the  district 

court  of county,  Iowa,  at  the term,  18 — ,  thereof,  in  favor  of 

and  against  for  the  sum  of  dollars  damages  and 

21  Polk  County  v.  Sypher,  17-358.  Stein  v.  Chambless,  18-474;  Childs 

22  Code,  Sec.  4031.  v.  McChesney,  20-431;   Thorington 

23  Code,  Sec.  4042.  v.  Allen,  21-291;  Moomey  v.  Maas, 
2*  Downard  v.  Crenshaw,  49-296.  22-380. 

as  Butterfield    v.    Walsh,    21-97; 


§  1283.]  SHERIFF'S  SALE.  509 

—  dollars  costs,  you  were  commanded  that  of  the  goods  and  chat- 
tels, lands  and  tenements,  of  the  said subject  to  execution  you 

cause  to  be  made  the  said  sums  of  money  with  interest  and  all  legally 
accruing  costs,  and  that  you  have  said  moneys  before  our  said  court 
within  seventy  days  from  the  date  of  said  writ  with'  the  return  of  your 
doings  thereon;  and  whereas  you  have  returned,  that  by  virtue  of  said 
writ  to  you  directed,  you  have  levied  upon  and  taken  in  execution  certain 

real  estate  (or  goods  and  chattels,  describing  them)  of  the  said 

which  remains  in  your  hands  unsold  for  the  want  of  bidders,  now, 
therefore,  you  are  hereby  commanded  that  you  expose  the  said  real 
estate  (or  goods  and  chattels)  to  sale  to  satisfy  said  execution  with  in- 
terest and  costs,  together  with  all  legal  costs  made  by  virtue  of  this 
writ,  and  have  said  moneys  in  our  said  court  within  seventy  days  from 
the  date  hereof  (to  which  the  following  may  be  added  as  provided  by 
statute:  "and  if  such  property  does  not  upon  the  sale  thereof  under  this 
writ  produce  a  sum  of  money  sufficient  to  satisfy  this  execution,  you  are 
hereby  further  commanded  to  make  of  the  goods  and  chattels,  lands  and 
tenements  of  the  said  —  —  a  sum  sufficient  to  satisfy  said  balance  with 
interest  and  accruing  costs  and  have  the  same,"  etc.)  as  the  law  requires, 
together  with  this  writ,  with  a  return  thereon  of  your  .doings  under  the 
same. 

Witness  ,  clerk  of  said  court,  with  the  seal  thereof  hereto 

affixed  this day  of ,  18 — . 

[Seal.]  »  clerk,  etc. 

§  1283.  Effect  of  sale  without  notice  to  the  defend- 
ant.— When  the  debtor  is  in  actual  personal  occupation, 
and  possession  of  the  lands  levied  on,  the  sheriff  ^having 
the  writ  must,  at  least  twenty  days  previous  to  the  sale, 
serve  him  with  written  notice,  stating  that  the  execution 
has  been  levied  on  the  land,  and  also  stating  the  time 
and  place  of  sale,  and  if  a  sale  is  made  without  giving 
this  notice,  it  will  be  set  aside  on  motion  made  at  the 
same,  or  the  next  term  of  the  court  after  such  sale.26  And 
this  provision  of  the  statute  is  applicable  to  sales  under 
special  as  well  as  under  general  executions.27  But  this 
notice  required  to  be  served  on  the  defendant,  need  not 
be  given  him  when  the  land  is  in  the  possession  and 
under  the  control  of  an  agent.28  Nor  when  the  property 
is  occupied  by  tenants.29  And  it  will  be  presumed  the 

28  Code,    Sec.    4025;     Jensen    v.  2?  Jensen  v.   Woodbury,   16-516; 

Woodbury,     16-516;      Fleming     v.  Fleming  v.  Maddox,  30-239. 

Maddox,  30-239;    Babcock  v.   Gur-  zs  Bennet  v.  Burton,  44-550. 

ney,  42-154;  Bennet  v.  Burton,  44-  a»  Babcock  v.  Gurney,  42-154. 
550. 


510  SHERIFF'S  SALE.  [§  1284. 

proper  notice  was  given  unless  the  contrary  appear.30 
Such  notice  may  be  in  the  following  form: 

FORM  OF  NOTICE  BY  SHERIFF  TO  DEFENDANT  IN  POSSESSIONS!, 
OF  LEVY  AND  TIME  OF  SALE. 

State  of  Iowa,     \ 
County.    '    S3> 


To : 

You  are  hereby  notified  that  by  virtue  of  an  execution  to  me  directed, 
issued  out  of  the  clerk's  office  of  the  district  court  of  the  State  of  Iowa 

in  and  for  county,  upon  a  judgment  rendered  in  said  court  in 

favor  of and  against for  the  sum  of dollars  debt  and 

—  dollars  costs,  I  have  levied  upon  the  following  real  estate,  to-wit 
(here  describe  the  land),  of  which  you  are  in  actual  occupation  and 

possession.    And  that  on  the  day  of  ,  18 — ,  at  the  front 

door  of  the  court  house  in  said  county,  at o'clock,  — .  m.,  of  said 

day  I  will  offer  the  same  for  sale  to  the  highest  bidder  at  public  auction 
to  satisfy  said  execution  with  all  legally  accruing  costs. 

Dated  this day  of ,  18—. 

,  sheriff  of county,  Iowa. 


This  notice  should  have  indorsed  on  it  the  return  of 
the  officer  serving  it,  thus: 

FORM  OF  RETURN  OF  SERVICE  OF  NOTICE  OF  LEVY  AND  TIME 

OF  SALE. 

I  hereby  certify,  that  the  above  notice  was  served  upon ,  who 

was  in  actual  possession  of  the  above  described  real  estate  on  the 

day  of ,  18— 

,  sheriff  of county,  Iowa. 

(This  form  may  be  on  the  same  sheet  following  the  notice.) 

§  1284.  Of  plan  of  sale  by  defendant. — At  any  time 
before  nine  o'clock  in  the  forenoon  of  the  day  of  sale,  the 
debtor  may  deliver  to  the  sheriff  a  plan  of  division  of  the 
land  levied  on,  subscribed  by  him.  And  in  that  case  the 
officer  must  sell  according  to  said  plan,  so  much  of  the 
land  as  may  be  necessary  to  satisfy  the  debt  and  costs 
and  no  more.  If  no  such  plan  is  furnished,  the  officer 
may  sell  without  any  division.31  The  general  execution 
laws  apply  to  all  sales  whether  made  under  general  or 

30  Coriell  v.  Doolittle,  2  G.  Gr.,         si  Code,  Sec.  4032. 
385. 


§  1283.]  SHERIFF'S  SALE.  511 

special  executions.32  The  intention  of  this  provision  of 
the  law  is  to  secure  sales  in  separate  tracts  as  the  de- 
fendant may  direct  If,  however,  the  lands  cannot  be 
sold  in  such  separate  tracts  for  want  of  bidders,  they 
may  afterwards  be  offered  and  sold  en  masse.83  But  the 
law  relating  to  selling  according  to  a  plan  of  division 
furnished  by  defendant  has  been  supposed  to  have  no 
application  to  sales  on  special  execution.34  But  recently 
it  has  been  held  otherwise.35 

§  1285.  When  sales  will  be  set  aside. — When  the 
execution  covers  different  tracts  of  land,  or  a  single  tract 
susceptible  of  being  advantageously  divided,  a  sale  of 
the  same  in  gross  is  irregular,  and  will  be  set  aside  on 
motion,  by  proceedings  in  equity  for  that  purpose.36  But 
it  seems  it  must  be  shown  that  the  sale  en  masse  worked 
an  injury  to  the  defendant  before  it  will  be  set  aside.37 
A  sale  to  the  plaintiff  in  execution  for  an  inadequate 
price  of  a  large  number  of  city  lots  en  masse  and  which 
were  mostly  separate  from  each  other,  is,  at  least  as  to 
lots  still  held  by  the  purchaser,  voidable,  and  may  be 
set  aside  by  an  action  for  that  purpose  by  the  execution 
defendant;  but  such  sale  will  be  held  valid  as  to  the 
lots  conveyed  by  the  purchaser  at  sheriff's  sale,  to*  third 
parties,  in  good  faith,  and  who  have  improved  them, 
after  the  lapse  of  several  years.38  When  the  officer's  re- 
turn fails  to  show  that  lots  were  separately  sold,  the 
presumption  is  that  he  did  his  duty  and  sold  them  sepa- 
rately.39 It  is  doubtful  whether  the  fact  two  lots  were 
sold  together  for  a  gross  sum,  can,  after  the  period  of  re- 
demption has  expired,  and  a  sheriff's  deed  been  executed 
and  delivered,  be  made  available  to  defeat  the  sale  to  a 
third  party.40  If,  however,  parcels  or  tracts  are  first 

32  Same  as  No.  27,  Sec.  1283.  Love   v.   Cherry,   24-204;    King  v. 

S3  Connecticut  Mut.   L.   Ins.   Co.  Tharp,  26-283. 

V.  Brown,  81-42.  37  Cunningham  v.  Felker,  26-117; 

s*  Malone  v.  Fortune,  14-417.  Wallace  v.  Berker,  25-456. 

ss  Taylor  v.  Trulock,  59-558.  88  Williams  v.  Allison,  33-278. 

se  White  v.  Watts,  18-75;  Lay  v.  sa  Love  v.  Cherry,  24-204;  Eggers 

Gibbons,  14-377;  Boyd  v.  Ellis,  11-  v.  Redwood,  50-289. 

97;    Bradford   v.   Limpus,   13-424;  *o  Love   v.    Cherry,    24-204;    see 


512  SHEBIFF'S  SALE.  [§  1286. 

offered  separately  and  not  sold  for  want  of  bidders  they 
may  then  be  offered  and  sold  en  masse.41  And  a  sale 
will  be  set  aside  where  by  reason  of  a  mistake  or  misun- 
derstanding between  the  officer  and  one  desiring  to  bid  a 
higher  bid  than  that  on  which  the  property  was  sold  on 
was  not  recognized  by  the  officer.42  One  holding  two 
judgment  liens  on  real  estate  who  sells  it  under  the 
junior  lien  without  fraud  or  misrepresentation  is  not 
estopped  from  thereafter  enforcing  as  against  the  pur- 
chaser of  the  property  the  senior  lien  held  by  him.43  If 
the  price  is  inadequate  and  the  sale  is  without  redemp- 
tion, the  sale  should  be  set  aside,44  and  so  it  should  in 
case  only  a  portion  of  the  land  subject  to  the  lien  was 
sold  by  reason  of  a  technical  defect  in  describing  the 
premises.45  Sales  will  be  set  aside  for  gross  inadequacy 
of  price  coupled  with  other  circumstances  tending  to 
prove  fraud,  and  where  separate  parcels  are  sold  in 
gross,  and  when  a  sale  is  made  on  a  second  execution  be- 
fore the  return  of  the  first.46  A  combination  between  the 
purchaser  at  the  sale  and  other  bidders  to  prevent  com- 
petition, will  vitiate  the  sale.47 

And  sales  will,  in  some  cases,  be  set  aside  for  fraud 
practiced  by  the  officer  conducting  the  sale,  or  by  a  pur- 
chaser thereat.48  So  sales  will  be  set  aside  where  the 
levy  is  excessive.49  And  where  there  is  a  mistake  of  law 
and  fact  growing  out  of  representations  as  to  the  appli- 
cation of  the  proceeds.50 

§  1286.    When  sales  will  not  be  set  aside. — A  sher- 

Whitney  v.  Armstrong,  32-9;  Hill  der  v.  Smith's  Heirs,  1-306;  Will- 
v.  Baker,  32-303.  iams  v.  Allison,  33-278;  Swortzell 
*i  Lamb  v.  McConkey,  76-47;  v.  Martin,  16-515;  Miller  v.  Col- 
Connecticut  Mut.  L.  Ins.  Co.  v.  ville,  21-135;  Twogood  v.  Stephens, 
Brown,  81-42.  19-405;  Sioux  City,  etc.,  Land  Co. 

42  Cornoy  v.  Wetmore,  70  N.  W.,  v.  Walker,  78-476;  Lehner  v.  Loom- 
178.  is,  83-416. 

43  Matless  v.  Sundin,  62  N.  W.,          4?  Fleming's    Heirs   v.    Hutchin 
662.  son,  36-519. 

44  Fitzgerald  v.  Kelso,  71-731.  **  Swortzell    v.    Martin,    16-513, 

45  Harrington  v.  Fidelity  Loan  &  Fleming's    Heirs    v.    Hutchinson, 
Trust   Co.,   91-703.  36-515;   Cooper  v.  French,  52-531; 

46Wood  v.  Young,  38-102;  Merrit      Wallace  v.  Berger,  25-456. 
v.  Grover,  57-493;  Boyd  v.  Ellis,  11-         49  Cook  v.  Jenkins,  30-452. 
97;  King  v.  Tharp,  26-283;  Caven-         eo  Bay  v.  Harnett,  58-344. 


§  1286.]  SHERIFF'S  SALE.  513 

iff's  sale  will  not  be  set  aside  on  motion  when  the  pur- 
chaser, who  was  not  a  party  to  the  execution,  has  not 
been  made  a  party  to  and  received  notice  of  the  motion.51 
Nor  will  a  sale  be  vitiated  by  the  fact  that  several  tracts 
were  sold  en  masse,  if  they  were  first  offered  separately 
and  no  bids  received  therefor.52  When  a  tract  embrac- 
ing several  acres  was  covered  by  a  mortgage  and  after- 
ward divided  into  town  lots  by  the  owner  of  the  fee,  and 
was  sold  as  a  whole  and  not  in  parcels,  it  was  held  that 
the  sale  was  not  invalid,  especially  as  it  was  not  claimed 
that  the  whole  tract  was  worth  more  than  the  amount 
of  the  debt53  Nor  will  a  sale  be  set  aside  for  inadequacy 
of  price  only,54  as  the  law  presumes  that  the  sale  was 
regularly  conducted  in  accordance  with  the  require- 
ments of  the  statute.55  Nor  because  of  an  omission  to 
plat  the  homestead  when  the  sheriff  serves  a  notice  on 
the  owner  reserving  a  specified  tract  as  a  homestead.56 
Nor  because  of  a  misnomer  of  the  plaintiff  in  the  title  of 
the  case  in  execution  when  the  name  and  character  of 
the  action  are  correctly  stated  in  the  body  thereof,  nor 
by  reason  of  defects  in  the  notice.57  Irregularities  in  the 
manner  of  making  the  sale  which  do  not  affect  the  power 
of  the  officer  to  make  it  will  not  render  it  void.58  %And 
when  the  proceedings  on  a  sheriff's  sale  are  with  the 
assent  of  the  judgment  debtor,  he  can  not  afterward  be 
heard  to  object  to  their  regularity.  And  he  is  estopped 
from  so  objecting  when  he  has  slept  on  his  rights.59  And 

siOsborn      v.      Cloud,      21-238;  Shaffer  v.  Bolander,  4  G.  Gr.,  201; 

Wright  v.  LeClaire,  3-221;   Lyster  Cooley  v.  Wilson,  42-425;  Cavender 

v.  Brewer,  13-461;  Polk  County  v.  v.    Smith's    Heirs,    1-306;    Hill    v. 

Sypher,  17-358.  Baker,  32-302;  Davis  v.  Spaulding, 

52  Hill  v.  Baker,  32-302;  Burmei-  36-610;    Coriell  v.  Ham,  4  G.  Gr., 

ster  v.  Dewey,  27-468;  see  Foley  v.  455;    Olmstead  v.  Kellogg,   47-460, 

Kane,  53-64;    Lamb  v.  McConkey,  Cole  v.  Porter,  4  G.  Gr.,  510. 

76-47.  5G  Smith  v.  De  Kock,  81-535. 

ss  Street  v.  Beal,  16-68;  see  Wai-  5?  Griffith    v.    Milwaukee    Harv. 

lace  v.  Berger,  25-456.  Co.,  92-634. 

s*  Hill  v.  Baker,  32-303;  Wallace  ss  Burmeister  v.  Dewey,  27-468; 

v.  Berger,  25-456;  see  Shine  v.  Hill,  Hill    v.    Baker,    32-302;    Davis    v. 

23-264;  Griffith  v.  Milwaukee  Harv.  Spaulding,    36-610;      Cavender    v. 

Co.,  92-634;  Equitable  Trust  Co.  v.  Smith's  Heirs,  1-306. 

Shr'ope,  73-297.  50  Crawford    v.    Grimm,    35-543; 

ssChilds  v.  McChesney,     20-431;  Maquoketa  v.  Willey,  35-323;  Cor- 

Johnson  v.  Carson,  3  G.  Gr.,  499;  iell  v.  Ham,  4  G.  Gr.,  455;   Cooley 
Vol.  H—33 


514  SHEEIFF'S  SALE.  [§§  1287,  1288. 

in  certain  special  cases  it  is  held  an  action  will  not  lie 
to  set  aside  the  sale.60 

§  1287.  Sales  may  be  set  aside  when  purchaser 
fails  to  pay. — If  the  purchaser  at  the  sale  fails  to  pay 
the  money  when  demanded,  the  judgment  holder,  or  his 
attorney,  may  elect  to  proceed  against  him  for  the 
amount.  If  they  do  not  do  so,  the  sheriff  may  treat  the 
sale  as  a  nullity  and  may  sell  the  property  again  on  the 
same  day,  or  after  a  postponement,  as  before  stated.61 
In  such  case  the  sheriff  should  advertise  and  sell  under 
a  venditioni  exponas,  as  under  an  ordinary  execution. 
But  a  sheriff  can  not  treat  a  bid  as  a  nullity  and  issue  a 
certificate  to  the  next  highest  bidder;  to  do  so  would  be 
a  violation  of  law.  He  may  disregard  the  bid  and  sell 
again,  but  if  it  is  accepted,  it  is  valid  and  binding.62  If 
the  bidder  fails  to  pay  the  amount  of  his  bid  he  cannot 
complain  if  the  sheriff  accepts  from  the  debtor  the 
amount  of  the  judgment.63  Where  the  plaintiff  in  ex- 
ecution is  the  purchaser  at  the  sale  and  fails  to  pay  the 
costs  in  the  case  the  sheriff  may  treat  the  sale  as  a.  nullity 
and  adjourn  it  to  another  day.64  If  the  sheriff  treats  the 
sale  as  complete  it  will  be  presumed  that  the  execution 
plaintiff  buying  the  property  paid  the  costs.65 

§  1288.  Sale  set  aside  when  defendant  has  no  title, 
etc.  — When  any  person  becomes  a  purchaser  at  a  sher- 
iff's sale  of  any  real  estate  on  which  the  judgment  upon 
•  which  the  execution  issued  was  not  a  lien  at  the  time  of 
the  levy,  and  which  fact  was  unknown  to  the  purchaser 
at  the  time  of  such  sale,  the  district  court,  out  of  which 
the  writ  issued,  will,  on  motion,  set  aside  such  sale. 

v.  Wilson,  42-425;  Exline  v.  Low-  5J-282;    Morrison    v.    Spencer,    72- 

ery,  46-556;  Merritt  v.  Grove,  61-99;  445. 

Williams  v.  Allison,  33-287;  Cham-  62  Swortzell  v.  Martin.  16-519. 

bers  v.  Cochran,  18-159;  Stewart  v.  «s  Long  v.  Valleau,  66  N.  W.,  195. 

Marshall,  4  G.  Gr.,  75.  64  Reese  v.  Dobbins,  51-282;  Rit- 

eoRuthven  v.  Mast,  55-715;  Mil-  ter  v.  Henshaw,  7-97;   Whitney  v. 

ler  v.  Felkner,  42-458;  Sigerson  v.  Armstrong,  32-9;  see  Chambers  v. 

Sigerson,  71-476.  Cochran,    18-159. 

6i  Code,   Sec.   4033;    Swortzell  v.  <*  Haspham  v.   Worthington    69 

Martin,  16-519;    Reese  v.  Dobbins,  N.  W.,  535. 


§  1289.]  SHEBIFF'S  SALE.  515 

Notice  having  been  given  to  the  debtor  as  in  the  case 
of  an  action,  a  new  execution  may  be  issued  to  enforce 
the  judgment,  and  on  making  the  order  to  set  aside  the 
sale,  the  sheriff  or  judgment  creditor  must  pay  over  to 
the  purchaser  the  purchase  money.  Such  motion  may  be 
made  by  any  person  having  an  interest  in  the  land.66  If 
the  judgment  is  against  principal  and  surety  and  the 
sale  is  set  aside,  as  hertofore  stated,  the  surety  will  not 
be  discharged  unless  he  has,  by  reason  of  the  sale, 
changed  his  condition  or  been  prejudiced.67  So  sales  will 
be  set  aside  when  property  is  bid  in  under  a  mistake  as 
to  the  quantity  of  land  sold.68  Or  the  property  is  sold 
under  a  wrong  description.69  Or  where  a  portion  of  the 
property  is  not  described  in  the  execution.70  When  the 
sale  has  been  judicially  set  aside  the  satisfaction  of  the 
judgment  which  followed  the  sale  and  was  entered  of 
record  by  reason  thereof,  should  also  be  set  aside.71 

§  1289,  Of  the  rule  of  caveat  emptor.— The  sheriff 
in  making  a  sale  undertakes  to  sell  only  the  interest  or 
estate  which  the  judgment  debtor  has  in  the  property. 
His  conveyance  carries  with  it  no  warranty  of  title.  The 
purchaser  is  bound  to  know  at  his  peril  of  the  title  of 
the  property  purchased  by  him  at  such  sale,  and  in  the 
absence  of  fraud  he  can  not  avoid  his  bid  or  escape  pay- 
ment of  the  purchase  money  by  reason  of  a  defective  title 
in  the  judgment  debtor.72  But  a  purchaser  at  such  sale, 
even  if  he  be  the  plaintiff  in  execution,  is  protected 
against  equities  and  unrecorded  instruments  of  which 
he  had  no  notice.73  And  a  purchaser  will  not  be  relieved 

as  Code,  Sec.  4034;  Hamsmith  v.  tiers  v.  Cochran,  18-159;  Chapman 
Epsey,  19-444;  Chambers  v.  Coch-  v.  Coates,  26-288;  Thomas  v.  Ken- 
ran,  18-159;  Dean  v.  Morris,  4  G.  nedy,  24-397;  Churchill  v.  Morse, 
Gr.,  312;  Reed  v.  Crosthwaite,  6-  23-229;  Dean  v.  Morris,  4  G.  Gr., 
219;  Boggs  v.  Douglass,  89-150.  312;  Cameron  v.  Logan,  8-434; 

67  Chambers  v.  Cochran,  18-159.  Downard     v.     Crenshaw,     49-296; 

«8  Kellogg  v.  Decatur  County,  38-  Weaver  v.  Stacy,  93-683;  Shaffer 

524.  v.  McCrackin,  90-578. 

«9  Latimer  v.  Jones,  55-503.  73  Hamsmith    v.    Epsey,     19-44; 

TO  Snyder  v.  Ives,  42-157.  Evans  v.  McGlasson,  18-150;   But- 

71  Farmer  v.  Sasseen,  63-110.  terfield  v.  Walsh,  21-97;  Wallace  v. 

72  Holtzingerv.  Edwards,  51-383;  Bartle,  21-346;    Walker  v.  Elston, 
Hamsmith  v.  Epsey,  29-444;  Cham-  21-529;    Gower  v.  Doheney,  33-36; 


516  SHEEIFF'S  SALE.  [§§  1290,  1291. 

against  mere  uncertainty  in  the  description,  where  the 
land  sold  is,  in  fact,  the  same  as  that  levied  on.74  Nor 
will  a  sale  be  set  aside  because  of  record  incumbrances 
on  the  land  amounting  to  more  than  its  value.75 

§  1290.  Of  the  disposition  of  money  and  choses 
in  action.  —  When  money  is  levied  on  it  may  be  appro- 
priated without  being  advertised  and  sold,  and  the  same 
may  be  done  with  bank  bills,  drafts,  promissory  notes 
or  other  papers  of  like  character,  if  the  plaintiff  will  re- 
ceive them  at  their  par  value  as  cash,  or  if  the  officer  can 
exchange  them  for  cash  at  that  value.76 

If  choses  in  action  can  not  be  thus  appropriated,  they 
must  be  sold,  and  upon  a  sale  of  bills,  notes  or  other 
writings,  the  sheriff  may  make  the  necessary  assign- 
ments to  pass  the  title  to  the  purchaser,77  and  the  sur- 
plus will  be  disposed  of  as  provided  in  section  4030  of 
the  code. 

§  1291.  Of  satisfying  judgments  against  an  ex- 
ecutor or  decedent. — When  a  judgment  has  been  ob- 
tained against  the  executor  of  one  deceased,  or  against 
the  decedent  in  his  lifetime,  which  the  personal  estate  of 
the  deceased  is  insufficient  to  satisfy,  the  plaintiff  may 
file  his  petition  in  the  office  of  the  clerk  of  the  court, 
where  the  judgment  is  a  lien  against  the  executor,  the 
heirs  and  devisees  of  the  real  estate,  if  there  be  such, 
setting  forth  the  facts,  and  that  there  is  real  estate  of 
the  deceased,  describing  its  location  and  extent,  and 
praying  the  court  to  award  execution  against  the  same.78 
But  before  this  can  be  done,  collection  must  be  first 
sought  out  of  the  personal  estate,  and  for  that  purpose 
the  judgment  must  be  clearly  stated,  sworn  to  and  filed 
as  a  claim  against  the  estate,  the  same  as  any  other 
claim.79 

Jones   v.   Brandt,   59-332;    Bell  v.  Earhart  v.  Grant,  32-481;  Ochiltree 

Evans,  10-353.  v.  M.,  I.  &  N.  R.  Co.,  49-150;  Code, 

74  Hackworth  v.  Zollars,  30-433.  Sec.  3971;     see  chapter  on  Judg- 

75  McDonald  v.  Johnson,  48-72.  ments. 

76  Code,  Sec.  4035.  78  Code,    Sec.    4036;     Bayless    T. 

77  Hetherington   v.    Hayden,   11-  Powers,  62-601. 

335;  Campbell  v.  Leonard,  11-489;         79  Bayless  v.  Powers,  62-601. 


§  1291.]  SHERIFF'S  SALE.  517 

The  petition  for  the  purpose  herein  mentioned  may  be 
in  the  following  form: 

FORM  OF  PETITION  TO  SUBJECT  REAL  ESTATE  TO  THE   PAY- 
MENT OF  A  JUDGMENT  AGAINST  AN  EXECUTOR 
OR  DECEDENT. 


Title, 
Venue 


.1 


Plaintiff  states  that  on  the  day  of ,  18—,  he  obtained 

judgment  in  this  court  against  the  defendant, ,  as  executor  of  the 

last  will  and  testament  of ,  deceased  (or  against  deceased,  naming 

him,  as  the  case  may  be),  for  the  sum  of dollars  and  costs  of  suit, 

which  judgment  remains  in  full  force,  and  has  not  been  paid  (or  if 
part  paid,  state  the  fact) ;  that  the  personal  estate  of  said  deceased  is 
insufficient  to  satisfy  the  said  judgment  (in  whole  or  in  part,  as  the  case 
may  be) ;  that  there  is  real  estate  of  the  deceased  within  this  State,  in 

county,  Iowa,  described  as  follows,  to-wit  (here  describe  the  real 

estate) ;   that  said  judgment  has  been  duly  stated,  sworn  to  and  tiled  as  a 

claim  against  the  estate  of  the  said  (or  as  the  case  may  be.) 

Wherefore,  he  prays  the  court  to  award  execution  against  said  real 
estate  to  satisfy  said  judgment,  with  interest  and  costs. 

,  attorney  for  plaintiff. 

(Add  verification.) 

The  person  against  whom  the  petition  is  filed  must  be 
notified  by  the  plaintiff  to  appear  on  the  first  day  of  the 
term  and  show  cause,  if  any  he  has,  why  execution 
should  not  be  awarded.80  The  notice  must  be  served  and 
returned  in  the  ordinary  manner  and  the  same  length  of 
time  allowed  for  appearance  as  in  civil  actions,  and  may 
be  served  on  a  non-resident  by  publication.81  Such  no- 
tice may  be  in  the  following  form: 

FORM  OF   NOTICE   TO   EXECUTOR,   ETC.,   OF   PROCEEDINGS   TO 
SUBJECT  REAL  ESTATE  TO  EXECUTION. 

To ,  executor,  etc.,  and  (here  Insert  names  of  all  other  parties 

as  in  petition) :     You  are  hereby  notified  that  the  plaintiff  on  the  — 
day  of ,  18—,  recovered  a  judgment  in  this  court  against  the  de- 
fendant as  executor  of  the  last  will  and  testament  of ,  deceased, 

(or  against ,  deceased,  as  the  case  may  be)  for  the  sum  of • 

dollars  and  costs  of  suit.  That  said  judgment  is  in  full  force  and  un- 
paid; that  it  has  been  stated,  sworn  to  and  filed,  as  a  claim  against  the 
estate  of  the  said ,  that  as  the  personal  estate  of  said is  in- 

so  Code,  Sec.  4037.  si  Code,   Sec.   4038. 


518  SHERIFF'S  SALE.  [§  1292. 

sufficient  to  pay  the  same,  plaintiff  will  on  the day  of ,  18 — , 

file  his  petition  in  the  district  court  of county,  Iowa,  asking  that 

an  execution  be  awarded  against  the  following  described  real  estate 

(here  describe  it),  of  said ,  that  the  same  may  be  sold  to  satisfy 

said  judgment,  interest  and  costs,  and  the  costs  of  this  'proceeding,  and 
unless  you  appear  at  the  next  term  of  court  to  be  begun  and  holden  at 

the  court  house  in  in  said  county,  on  the day  of  , 

18 — ,  and  show  cause  why  said  execution  should  not  be  awarded,  the 
prayer  of  said  petition  will  be  granted  and  an  execution  awarded  as 
prayed. 

,  attorney  for  plaintiff. 

Unless  good  cause  be  shown  to  the  contrary,  the  court 
at  the  proper  time  will  award  execution,82  and  the  non- 
age of  the  heirs  or  devisees  is  not  sufficient  cause.83  But 
a  showing  that  the  judgment  had  not  been  stated,  sworn 
to  and  filed,  as  a  claim  against  the  estate,  would  be  good 
cause  for  refusing  to  award  execution  against  the  real 
estate.84  As  would  also  the  fact,  if  it  is  so  found,  that 
there  is  sufficient  personal  property  to  satisfy  the  judg- 
ment.85 

§  1292.  Of  setting  off  mutual  judgments. — Mutual 
judgments,  the  executions  on  which  are  in  the  hands  of 
the  same  officer,  may  be  set  off,  the  one  against  the  other, 
except  that  the  costs  can  not  be  set  off,  unless  the  bal- 
ance of  cash  actually  collected  on  the  larger  judgment  is 
sufficient  to  pay  the  costs  of  both  judgments,  in  which 
case  the  costs  must  be  paid  from  such  balance  of  cash  in 
the  sheriff's  hands.86  And  when  a  judgment  has  been 
fraudulently  assigned  by  the  party  in  whose  favor  it  was 
rendered,  for  the  purpose  of  preventing  a  set-off,  a  court 
of  equity  will  interpose  and  effect  such  set-off.87  Under 
sections  4040  and  3465  of  the  code,  an  execution  issued 
on  a  judgment  in  favor  of  a  sole  plaintiff  may  be  set  off 
against  an  execution  issued  on  a  judgment  in  which  such 
sole  plaintiff  is  a  joint  defendant.88  Ordinarily  the  sher- 
iff has  power  only  to  set  off  executions  in  his  hands  when 

«2  Code,  Sec.  4039.  s«  Code,  Sec.  4040. 

ss  Code,  Sec.  4039.  87  Hurst  v.  Sheets,  14-322 

s*  Bayless  v.  Powers,  62-601.  ss  Ballinger  v.  Tarbell,  16-491 
SB  Code,  Sec.  4036. 


§§  1293,  1294.]  SHERIFF'S  SALE.  519 

the  parties  to  the  judgments  upon  which  they  are  issued 
are  in  both  cases  the  same,  and  when  the  judgments  are 
the  property  of  the  parties  thereto.89  The  fact  that  a 
judgment  has  been  assigned  to  the  attorney  in  the  case 
to  secure  his  lien  will  not  prevent  the  opposite  party 
from  setting  off  against  it  a  judgment  in  his  favor  for 
costs  in  the  same  action.90 

§  1293.  Of  sale  of  leasehold  interest,  etc.— When 
real  property  has  been  levied  on,  if  the  estate  of  the  de- 
fendant therein  is  less  than  a  leasehold  interest  having 
two  years  of  an  unexpired  term,  the  sale  is  absolute.91 
When  the  estate  is  of  a  larger  amount  or  interest,  the 
property  is  redeemable  as  hereinafter  stated.92  A  judg- 
ment is  a  lien  on  the  debtor's  leasehold  interest  in  land 
and  it  follows  the  leasehold,  though  it  be  conveyed  to 
other  persons.93 

And  such  leasehold  may  be  sold  on  execution  after 
conveyance  without  the  aid  of  a  court  of  equity,  and  an 
action  in  equity  can  not  be  maintained  for  the  purpose.94 

Real  property  is  sold  without  appraisement. 

§  1294.    Of  the  appraisement  of  personal  property. 

— Personal  property  and  leasehold  interests  in  real*  prop- 
erty having  less  than  two  years  of  an  unexpired  term, 
levied  on  and  advertised  for  sale  on  execution,  must  be 
appraised  before  sale  by  two  disinterested  householders 
of  the  neighborhood,  one  of  whom  must  be  chosen  by  the 
execution  debtor,  and  the  other  by  the  plaintiff,  or  in 
case  of  the  absence  of  either  party,  or  if  either  or  both 
such  parties  refuse  or  neglect  to  make  such  choice,  the 
officer  making  the  levy  must  choose  one  or  both,  as  the 
case  may  be,  who  must  forthwith  proceed  to  return  to 
said  officer  a  just  and  true  appraisement  under  oath  of 
said  property,  if  they  can  agree,  and  in  case  they  can  not 

so  Bell  v.  Perry,  43-368.  02  Code,  Sec.  4043;  chapter  on  Re- 

eo  Tiffany  v.  Stewart,  60-207 ;  Ben-      demption. 

Bon  v.  Haywood,  86-107.  as  First  Nat'l  Bk.  v.  Bennett,  40- 

»i  Code,  Sec.  4043.  537,  and  cases  cited. 

9*  Sweezy  v.  Jones,  65-272. 


520  SHERIFF'S  SALE.  [§  129-i. 

agree,  they  must  choose  another  disinterested  house- 
holder and  with  his  assistance  complete  said  appraise- 
ment, and  the  property  can  not  upon  the  first  offer  be 
sold  for  less  than  two-thirds  of  such  valuation,  provided, 
the  same  must  be  offered  for  three  successive  days  at  the 
same  place  and  hour  of  the  day  as  advertised,  and  if  no 
bid  is  received  equal  to  two-thirds  of  the  appraised  value 
thereof,  then  it  may  be  sold  for  one-half  the  valuation.95 
But  it  has  been  held  that  contracts  made  prior  to  the 
taking  effect  of  the  appraisement  law  of  I860  were  not 
affected  thereby,  even  though  enforced  after  the  law  took 
effect.96  And  under  the  revision,  section  3362,  it  was 
held  that  the  fact  that  one  of  the  appraisers  was  not  a 
householder,  as  required  by  law,  did  not  render  the  sale 
void.97  But  in  such  a  case,  when  lands  were  appraised 
at  less  than  one-half  their  real  value,  the  debtor  was 
allowed  to  redeem  from  the  judgment  creditor.98  And  it 
was  further  held  that  a  sale  for  a  less  proportion  of  the 
appraised  value  than  the  law  then  authorized  would  be 
invalid,  at  least  as  between  the  parties.99  When  it  ap- 
pears that  the  sheriff  in  appointing  an  appraiser  did  not 
show  in  his  return  that  the  party  for  whom  he  acted  in 
making  such  appointment  was  absent,  or  refused  to  act, 
such  fact  will  not  render  the  sale  void,  nor  will  the  fact 
that  the  deputy  sheriff  selected  one  of  the  appraisers.1 
Notice  must  be  given  to  the  parties,  their  agents  or  at- 
torneys, of  the  levy,  and  it  must  require  each  of  them  to 
choose  one  appraiser.2  It  may  be  served  in  the  ordinary 
manner,  or  if  the  parties  are  present  when  the  levy  is 
made,  they  may  choose  appraisers  without  formal  writ- 
ten notice.  The  debtor  cannot  by  stipulation  in  a  mort- 
gage, or  otherwise,  waive  the  provision  of  the  law  re- 
quiring an  appraisement.3  The  notice  may  be  in  the  fol- 
lowing form : 

»5  Code,  Sec.  4041.  »»  Maple  v.  Nelson,  31-322. 

»« Olmstead  v.   Kellogg,   47-460;          i  Preston     v.     Wright,     66-351; 
Rosier  v.  Hale,  10-470.  Davis  v.  Spaulding,  36-610. 

»T  Hill  v.  Baker,  32-302.  2  Code,  Sees.  4023,  4024. 

es  Woods  v.  Cochran,  38-484.  s  Minneapolis     Threshing     Men. 

Co.  v.  Beck,  64  N.  W.,  637. 


§  1294.]  SHEEIFF'S  SALE.  521 

FORM  OF  NOTICE  TO  CHOOSE  APPRAISERS. 
Venue.  "I 
Title,    / 

To (or  his  agent  or  attorney,  as  the  case  may  be) : 

You  are  hereby  notified  that  by  virtue  of  an  execution  issued  from 

the  office  of  the  clerk  of  the  district  court  of county,  Iowa,  in  the 

above  entitled  action,  I  have  levied  upon  the  following  personal  prop- 
erty as  the  property  of  said ,  viz.  (here  describe  the  property),  and 

that  I  will  have  said  property  appraised  on  (day  of  the  week),  the  — 

day  of  ,  18 — .    And  you  are  required  to  select  one  disinterested 

householder  of  the  neighborhood  within  three  days  to  act  as  an  ap- 
praiser on  your  behalf,  to  value  said  property  and  report  the  same  to 
me,  as  required  by  law. 

Dated  the day  of ,  18—. 

,  sheriff  of county,  Iowa. 

The  sheriff,  after  the  appraisers  have  been  selected  as 
provided  by  law,  may  issue  to  them  the  following  ap- 
pointment: 

FORM  OF  APPOINTMENT  OF  APPRAISERS. 

Title, 
Venue. 

To  (here  insert  names  of  appraisers),  appraisers: 

On  an  execution  issued  from  the  office  of  the  clerk  of  the  district 
court  of  said  county,  on  a  judgment  rendered  in  the  above  entitled 
action  on  the day  of ,  18 — ,  against  the  defendant  (or  plain- 
tiff), for  (amount)  and per  cent,  interest  and  costs,  I  have  levied 

on  the  following  described  property,  to-wit  (here  describe  property). 
You  are,  therefore,  hereby  notified  that  you  are  appointed  appraisers 
to  appraise  under  oath  the  present  cash  value  of  the  above  described 
personal  property,  and  having  performed  that  duty  you  will  return  a 
written  report  thereof  as  soon  as  practicable. 

Dated  this day  of ,  18 — . 

,  sheriff  of county,  Iowa. 

The  appraisers  must  be  sworn  as  follows: 

FORM  OF  OATH  OF  APPRAISERS. 
State  of  Iowa,  {    gg 


•'I 


County 

We  (names  of  appraisers),  do  each  solemnly  swear  that  to  the  best 
of  our  knowledge  and  ability,  we  will  faithfully  and  impartially  ap- 
praise the  present  cash  value  of  the  property  described  in  the  above 
appointment. 


(Add  certificate  of  officer.) 


522  SHERIFF'S  SALE.  [§  1295. 

After  making  the  appraisement  the  appraisers  should 
make  the  following  return  to  the  sheriff: 

FORM  OF  APPRAISEMENT. 

To  the  sheriff  of county,  Iowa: 

We,  the  undersigned,  having  performed  the  duties  assigned  us  in  the 
foregoing  appointment,  respectfully  report  that  we  have  thoroughly  ex- 
amined the  property,  described  in  our  written  appointment,  and  under 

oath  have  appraised  the  present'  cash  value  of  said  property,  at 

dollars  (or  if  the  articles  of  property  are  numerous,  say,  as  shown  In 
schedule  "A"  attached  hereto,  attaching  a  schedule  with  a  description 
of  each  article  of  property,  and  its  value  set  opposite). 

Witness  our  hands  this day  of ,  18 — . 


appraisers. 


These  three  forms  may  properly  be  put  on  one  sheet. 
The  revision  required  that  when  the  property  offered  for 
sale  under  the  writ  was  subject  to  prior  liens,  the  amount 
bid  should  be  the  balance  after  deducting  the  amount  of 
such  prior  liens  from  two-thirds  of  the  appraised  value.4 
Nothing  is  said  in  the  code  with  reference  to  deducting 
prior  liens  in  making  the  appraisement,  and  it  would 
seem  that  they  are  not  to  be  considered.5  For  further 
discussion  of  the  subject  of  appraisement,  which,  as  to 
sales  of  real  estate,  is  almost  obsolete,  the  reader  is  re- 
ferred to  cases  below.6 

§  1295.  Of  the  .sheriff's  return.— After  the  sale  the 
sheriff  must  make  his  return  of  the  execution  with  a 
statement  of  his  doings  thereunder,  together  with  the 
notice  of  appointment  of  appraisers,  oath  of  appraisers, 
and  appraisement  of  the  property,  which  return  should 
affirmatively  show  a  compliance  with  the  statute.  But 
a  failure  of  the  officer  to  make  return  of  a  sale  before  the 
expiration  of  a  year  from  the  date  of  it  will  not  invali- 
date the  sale.7 

*  Revision,  Sec.  3360;  Sargent  v.  Bolander,  4  G.  Gr.,  201;  Johnson  v. 

Pittman,  16-469;  Brown  v.  Butters,  Casson,  3  G.   Gr.,   499;    Burton  v. 

40-544;    Barber   v.   Tryon,   41-349;  Emerson,  4  G.   Gr.,   393;    Holland 

McDonald  v.  Johnson,  48-72.  v.    Dickerson,   41-367;    Babcock   v. 

5  Van  Slyck  v.  Mills,  34-375.  Gurney,  42-154. 

e  Fonda  v.  Clark,  43-300;  McDon-          i  Cooper  v.  French,  52-531. 
aid  v.  Johnson,  48-72;    Shaffer  v. 


§  1296.]  SHERIFF'S  SALE.  523 

§  1296.    Of  the  rights  of  the  purchaser,  and  who 
may  purchase.  —  In  treating  of  redemption  we    have 
spoken  of  the  rights  of  the  purchaser  with  reference  to 
recording  his  deed;  we  now  consider  briefly  the  rights  ac- 
quired by  the  purchaser  generally  at  execution  sale.     If 
one  purchases  personal  property  at  an  execution  sale  his 
rights  are  only  those  of  a  judgment  defendant  at  the 
time  of  the  levy,  being  subject  to  the  rights  of  prior  pur- 
chasers.8   And  generally  it  may  be  said  that  a  purchaser 
at  an  execution  sale  acquires  no  title  when  it  is  apparent 
from  the  record  that  the  debtor  had  no  interest  in  or 
title  to  the  property.9    In  order  to  affect  the  right  of  a 
purchaser  at  an  execution  sale  it  must  appear  that  the 
conveyance  under  which  the  adverse  party  claims  was 
in  fact  made  before  the  deed  was  filed  for  record.10    But 
the  purchaser  at  an  execution  sale  will  not  obtain  prior- 
ity over  a  purchaser  at  a  previous  sale  of  the  same  prop- 
erty under  a  mortgage  executed  and  recorded  prior  to 
such  sale.11     A  sheriff's  deed  under  a  sale  on  execution 
transfers  the  premises  sold  and  also  relates  back  to  the 
time  the  judgment  became  a  lien  on  the  land.12    An  at- 
torney of  an  execution  plaintiff  who  purchases  at  execu- 
tion sale  property  levied  on  by  attachment,  will  not  be 
deemed  an  innocent  purchaser,  but  he  and  his  heirs  are 
chargeable  with  equities  or  with  illegalities  in  the  pro- 
ceedings.13   But  an  execution  plaintiff  who  purchases  in 
good  faith  and  before  notice  of  appeal,  will  be  protected 
the  same  as  a  stranger.14    A  judgment  creditor  who  pur- 
chases at  an  execution  sale  an  equitable  interest  in  land, 
takes  the  premises  subject  to  prior  equities  of  third  par- 
ties, of  which  he  had  no  notice.15     It  is  held  that  the 
plaintiff  in  execution,  who  purchases  at  the  sale,  is  pro- 
tected against  outstanding  equities  of  which  he  had  no 
notice,  actual  or  constructive,  before  the  sale.16    One  of 

s  Rakestraw  v.  Hamilton,  14-147;          «•  Bell  v.  Hall,  4  G.  Gr.,  68. 
Thomas  v.  Hillhouse,  17-67.  «  Kane  v.  Mink,  64-84. 

o  Stuart  v.  Hines,  33-60.  "  Cook  v.  Jenkins,  30-452. 

10  Brown   v.   Wade,    42-647;    see          1*  Frazier  v.  Craft,  40-110. 
Bonnell  v.  Allerton,  51-166.  «  Wallace  v.  Bartle,  21-346. 

i«  Butterfield    v.    Walsh,    36-534, 


524  SHEBIFF'S  SALE.  [§  1297. 

several  execution  defendants  may  purchase  at  an  execu- 
tion sale  the  property  of  another  defendant,17  and  a  bid 
made  at  such  sale  may  be  transferred  to  another  by  con- 
sent of  the  court,  and  such  other  person  will  then  be  con- 
sidered the  purchaser.18 

§  1297.  Of  return  of  the  purchase  money  cancel- 
ing satisfaction,  etc. — When  a  sale  has  been  judicially 
set  aside,  the  satisfaction  of  the  judgment  which  fol- 
lowed the  sale  should  be  set  aside.19  And  the  proceed- 
ing to  set  aside  the  sale  should  be  brought  in  the  court 
wherein  the  judgment  was  rendered.20  One  seeking  to 
have  a  sheriff's  sale  set  aside,  must  return  or  offer  to  re- 
turn the  property  or,  if  he  has  sold  it,  its  proceeds.21  A 
purchaser  at  an  execution  sale  who  pays  his  money  with- 
out knowledge  of  any  irregularities  therein,  is  entitled, 
on  the  sale  being  set  aside,  to  have  the  money  he  has 
paid  refunded  to  him,  and  for  such  purpose  may  be  sub- 
rogated  to  the  rights  of  the  execution  plaintiff.22  But 
the  purchaser  of  premises  under  a  foreclosure  sale  which 
is  afterward  set  aside,  is  not  liable  for  rent  or  waste  ac- 
cruing between  the  time  of  sale  and  the  time  it  was  set 
aside,  if  possession  was  taken  by  another  without  his 
knowledge  and  he  was  not  connected  with  the  acts  of  the 
tenant.23  To  establish  title  under  a  sale  on  execution 
the  purchaser  may  give  in  evidence  the  judgment  and 
execution  under  which  the  property  was  sold  and  prove 
the  sale  by  the  sheriff's  deed  or  the  return  on  the  execu- 
tion.24 A  purchaser  of  property  held  under  execution  is- 
sued on  a  void  judgment  may  maintain  an  action  against 
the  officer  for  selling  the  property.25  One  acting  as  a 
public  officer  in  making  a  sale  can  not  be  heard  to  object 
that  he  was  not  an  officer  de  jure.26 

and  cases  cited;   see  Bear  v.  Bur-  21  First  Nat'l  Bk.  v.  Conger,  37- 

lington,  C.  R.  &  M.  R.  Co.,  48-619.  474;  Williams  v.  Allison.  33-278. 

7  Winde  v.  Brandt,  55-221.  -2  Fleming    v.    Maddox,    32-493; 

is  Oilman  v.   Des  Moines  V.   R.  see    Cotter    v.    O'Connell,    48-552; 

Co.,  42-495.  Osborn  v.  Cloud,  23-104. 

is  Farmer  v.  Sasseen,  63-110;  see  23  Vulgamore  v.  Stoddard,  21-115. 

Parks  v.  Davis,  16-20;  State  Bk.  v.  21  Lepage  v.  McNamara,  5-124. 

Harrow,  26-426.  25  Gates  v.  Neimeyer,  54-110. 

20  White  v.  Hampton,  14-66.  26  state  v.  Stone,  40-547. 


CHAPTEK  LXXXI. 

OF  SUMMARY  PROCEEDINGS. 

Sec.  1298.  When  allowed. 

1299.  Of  the  form  of  proceeding. 

1300.  Of  notice. 

1301.  Of  the  hearing. 

Section  1298.  When  allowed. — Judgments  or  final 
orders  may  be  obtained,  on  motion,  by  sureties  against 
their  principals;  by  sureties  against  their  co-sureties, 
for  the  recovery  of  money  due  them  on  account  of  pay- 
ments made  by  them  as  such;  by  clients  against  attor- 
neys; plaintiffs  in  execution  against  sheriffs,  constables 
and  other  officers,  for  the  recovery  of  money  or  prop- 
erty collected  by  them,  and  for  damages.1  The  court 
may  make  an  order  against  a  clerk  to  compel  payment 
of  money  received  by  him  on  a  judgment.2  But  sureties 
on  official  bonds  are  not  included  in  this  statute;  they 
must  be  regularly  brought  into  court  as  defendants,  and 
have  an  opportunity  to  contest  the  claim  made  by  the 
plaintiff.3 

§  1299.  Of  the  form  of  the  proceeding.— The  pro- 
ceeding is  instituted  by  motion  of  the  party  entitled 
thereto  setting  forth  the  grounds  on  which  he  asks  the 
judgment  or  order  of  the  court,  and  may  be  in  the  fol- 
lowing form: 

FORM  OF  MOTION  FOR  SUMMARY  PROCEEDINGS. 

Title,      ) 
Venue.    \ 

The  plaintiff  states: 

1.    That  on  the day  of ,  18—,  judgment  was  duly  ren- 

iCode,  Sec.  3826;   Cross  v.  Ack-      son  v.  Hays,  85-14;   Logan  v.  Mc- 
iey)    40-493;    Hawk  v.    Evans,   76-      Cahan,  71  N.  W.,  252. 
593;  State  v.  Morgan,  80-413.  s  Code,     Sec.     3826;     Bitting    v. 

2  Elliott  v.  Jones,  47-124;  Peter-      Moore,  53-593. 

525 


526  SUMMARY   PEOCEEDIXGS.  [§  1299. 

dered  in  this  court  in  his  favor  against for  the  sum  of 

dollars  and  costs. 

2.  That  the  said ,  the  defendant  herein,  was  attorney  for  this 

plaintiff  in  the  suit  when  said  judgment  was  rendered. 

3.  That  on  or  about  the  —     -  day  of  -     — ,  18 — ,  said  defendant 
as  such  attorney  for  plaintiff  herein  received  of  the  clerk  of  the  district 

court  of county,  Iowa,  the  sum  of dollars  in  full  of  said 

judgment  and  the  interest  thereon. 

4.  That  this  plaintiff  is  not  indebted  to  defendant,  and  defendant 
neglects  and  refuses  to  pay  said  sum  over  to  plaintiff  though  it  has  been 
demanded  of  him. 

Wherefore  plaintiff  moves  for  judgment  against  the  said ,  de- 
fendant, as  aforesaid,  for  the  sum  of dollars  with  damages  and 

costs. 

,  attorney  for  plaintiff. 

The  form  must  be  changed  to  suit  the  circumstances 
of  each  case.  Thus,  if  the  proceeding  is  against  a  sheriff 
who  has  collected  funds  on  execution  and  refuses  to  pay 
over  to  the  party  entitled  thereto,  divisions  2,  3  and  4  of 
above  form  should  be  omitted  and  the  following  inserted 
in  lieu  thereof: 

FORM  OP  MOTION  WHEN  THE  ACTION  IS  AGAINST  AN  OFFICER. 
FOR  REFUSING  TO  PAY  OVER. 

2.  That  on  the day  of ,  18 — ,  an  execution  was  issued 

on  said  judgment  directed  to  and  placed  in  the  hands  of  said ,  the 

then  acting  sheriff  of county,  Iowa. 

3.  That  the  said  has  collected  on  said  execution  the  sum 

of dollars,  which  he  neglects  and  refuses  to  pay  over  either  to 

this  plaintiff  or  to  the  clerk  of  this  court,  though  such  payment  has 
often  been  demanded. 

The  motion  must  state  the  facts  fully  in  each  case, 
showing  the  right  of  the  party  to  make  the  motion  and 
to  have  judgment,  and  the  relationship  of  the  party  mak- 
ing the  motion  to  the  one  against  whom  it  is  directed 
must  be  shown,  and  the  facts  out  of  which  the  obligaion 
of  the  latter  arises  in  favor  of  the  plaintiff;  thus  if  it  is 
made  by  a  client  against  his  attorney  it  must  state  the 
facts  showing  the  existence  of  such  relation,  and  that  the 
attorney  has  collected  the  money,  and  refuses  to  pay  it 
over,  or  if  a  case  of  surety  against  principal  it  must  show 


§§  1300,   1301.]  SUMMARY    PROCEEDINGS.  527 

that  relation,  and  the  fact  the  surety  has  paid  money  for 
his  principal  and  has  not  been  reimbursed. 

§  1300.  Of  notice. — Notice  of  the  motion  must  be 
served  on  the  party  against  whom  the  judgment  or  order 
is  sought,  at  least  ten  days  before  the  motion  is  made.4 
The  notice  must  state  in  plain  and  ordinary  language  the 
nature  and  grounds  of  the  motion  and  the  day  on  which 
it  will  be  made.5  And  unless  the  motion  is  made  and 
filed  with  the  case  on  or  before  the  day  named  in  the 
notice  it  will  be  considered  as  abandoned.6  The  notice 
may  be  in  the  following,  form : 

FORM  OF  NOTICE  OF  MOTION  IN  SUMMARY  PROCEEDINGS. 

Title, 
Venue. 


To  : 

You  are  hereby  notified  that  on  the day  of ,  18 — ,  the 

plaintiff  will  move  the  court  for  a  summary  judgment  (or  order,  as  the 
case  may  be)  against  you  on  the  following  grounds: 

1.  That  (here  set  out  the  grounds  of  the  motion).  And  unless  you 
appear  and  show  cause  to  the  contrary  judgment  will  be  rendered 

against  you  accordingly. 

,  attorney  for  plaintiff. 

§  1301.  Of  the  hearing. — The  motion  will  be  heard 
and  determined  without  written  pleadings  and  judg- 
ment given  according  to  law  and  the  rules  of  equity.7 
Where  money  of  a  third  party  is  paid  to  the  clerk  in  pur- 
suance of  a  decree  of  court,  such  third  party  has  no  right 
to  object  to  the  disposition  of  such  money  on  the  ground 
that  he  had  no  notice  of  the  action  in  which  the  decree 
was  rendered;  if  the  decree  is  invalid  it  can  not  be  at- 
tacked in  that  manner.8  In  the  absence  of  a  demand  for 
a  trial  of  the  issues  at  law  and  for  a  jury  it  is  not  error 
to  try  the  case  to  the  court  as  an  equitable  proceeding.9 

*  Code,  Sec.  3827.  ?  Code,   Sec.    3830;    Mansfield   v. 

»  Code,  Sec.  3828;  see  Mansfield  v.  Wilkerson,  26-482. 

Wilkerson,   26-482.  8  Elliott  v.  Jones,  47-124. 

e  Code,   Sec.   3829;    Mansfield  v.  •  Lothian  v.  Lothian,  88-396. 
Wilkerson,  26-482. 


CHAPTEK  LXXXIL 

OP  TRESPASS. 

Sec.  1302.  What  is  trespass. 

1303.  When  the  action  will  lie. 

1304.  Who   may  maintain  the  action. 

1305.  When  the  action  will  not  lie. 

1306.  Of  the  petition. 

1307.  Of  practice. 

Section  1302.  What  is  trespass. — Trespass  is  an  un- 
lawful act  committed  with  violence  vie  et  armis  to  the 
personal  property  or  relative  rights  of  another.1 

§  1303.  "When  the  action  will  lie. — It  will  lie  for 
wilfully  injuring  any  timber,  tree,  or  shrub  on  the  land 
of  another;  or  in  the  street,  or  highway,  in  front  of 
another's  cultivated  grounds,  yard,  or  town  lot,  and  on 
the  public  grounds  of  any  town,  or  on  land  held  by  the 
State  of  Iowa  for  any  purpose  whatever.2  So  it  will  lie 
against  one  who  drives  his  cattle  upon  another's  land 
through  a  breach  in  the  fence.3  Or  when  one  enters  on 
the  land  of  another  and  digs  a  ditch.4  And  it  will  lie 
against  one  who  without  leave  raises  a  crop  on  another's 
land  and  removes  it.5 

§  1304.  Who  may  maintain  the  action. — The  suit 
may  be  instituted  in  the  name  of  any  person  entitled  to 
protect  or  enjoy  the  property  trespassed  upon,  and  if 
recovery  be  had  the  perpetrator  must  pay  treble  dam- 
ages.6 

It  may  be  maintained  by  the  owner  of  an  estate  in 

1  2  Bouv.  Law  Die.,  14th  Ed.,  pg.  s  Erbes  v.  Wehmeyer,  69-85. 
608.  *  Williams  v.  Mills  Co.,  71-367. 

2  Code,  Sec.  4306;  Wilson  v.  Gun-  5  Kiernan     v.     Heaton,     69-136; 
ning,  80-331;  Werner  v.  Flies,  91-  Schmidt  v.  Williams,  72-317. 

146.  s  code,  Sec.  4306. 

528 


§  1305.]  TKESPASS.  529 

remainder,  or  reversion,  for  an  injury  to  the  inheritance.7 
So  an  heir,  whether  a  minor  or  of  full  age,  may  maintain 
the  action  for  injuries  done  in  the  time  of  his  ancestor, 
as  well  as  in  his  own  time,  unless  barred  by  the  statute 
of  limitations.8  And  a  purchaser  at  execution  sale  may 
maintain  the  action.9  But  this  would  not  prevent  the 
person  occupying  the  land  during  the  period  of  redemp- 
tion from  using  it  in  the  ordinary  course  of  husbandry, 
or  from  using  timber  for  the  purpose  of  making  proper 
repairs  thereon.10 

So  the  owner  of  a  treasurer's  certificate  who  purchases 
the  land  sold  for  taxes,  may  recover  treble  damages  of 
one  wilfully  committing  trespass  thereon,11  but  the 
moneys  recovered  in  such  case  will  be  paid  by  the  officer 
collecting  the  same,  to  the  county  auditor  of  the  county 
in  which  the  lands  are  situated,  and  held  by  him  and  an 
entry  made  in  a  book  kept  for  that  purpose,  until  such 
lands  are  redeemed  and  a  treasurer's  deed  shall  have 
been  executed  to  the  holder  of  the  certificate.  If  redemp- 
tion be  made,  the  money  will  be  paid  to  the  owner  of  the 
land;  if  not  redeemed,  to  the  person  to  whom  such  deed 
is  executed.12 

The  tenant  in  possession  may  also  have  an  action  for 
such  injuries.13  So  it  is  held  when  one  is  in  constructive 
possession  he  can  maintain  the  action  of  trespass.14  The 
owner  of  real  property,  though  it  be  actually  occupied  by 
a  tenant,  can  maintain  an  action  against  a  trespasser  for 
injuries  to  the  premises.15 

§  1305.  When  the  action  will  not  lie.  —The  action 
will  not  lie  against  a  person  who  is  settled  upon  and  oc- 
cupying any  portion  of  the  public  lands  held  by  the  State 
of  Iowa,  where  he  is  improving  or  cultivating  said  land 
in  the  ordinary  course  of  husbandry,  and  not  taking  or 

7  Code,  Sec.  4307.  13  Elliott  v.  Foster,  33-216. 

s  Code,  Sec.  4308.  14  Terpenning    v.     Gallup,    8-74; 

s  Code,  Sec.  4309.  Mann  v.  Lewis,  4  G.  Gr.,  494;  Dor- 

10  Code,  Sec.  4309.  cey  v.  Patterson,  7-420. 

11  Code,  Sec.  4311.  is  Printz  v.  Cheney,  11-469;   see 

12  Code,   Sec.  4312.  Brown  v.  Bridges,  31-138. 

Vol.  H—34 


530  TRESPASS.  [§§  1306,  1307. 

using  timber,  or  other  materials,  growing  or  being  on  said 
land,  except  as  the  same  are  necessary  properly  to  enable 
him  to  suitably  cultivate  and  improve  the  same.16 
§  1306.    Of  the  petition. 

FORM    OF    PETITION 'IN    AN  ACTION  OF    TRESPASS  ON    REAL 

PROPERTY. 
Title,      ) 
Venue.    ) 

The  plaintiff  states: 

That  on  or  about  the day  of ,  18 — , ,  said  plaintiff, 

was  the  owner  of  the  following  described  real  estate  in  the  county  of 

aforesaid,  and  ever  since  that  time  has  been  the  owner  of  the 

same  (here  describe  the  premises);  that  said  premises  are  the  culti- 
vated grounds  (yard  or  town  lot)  of  the  plaintiff;  that  on  said  day  and 
divers  other  days  between  that  day  and  the  commencement  of  this  suit, 
the  defendant  unlawfully  did  enter  upon  said  premises,  and  then  and 
there  cut  down sugar  trees  standing  and  growing  on  said  prem- 
ises, and  of  the  value  of dollars  each,  and  converted  the  same  to 

his  own  use,  and  no  part  of  said  sum  has  been  paid  plaintiff.     Where- 
fore plaintiff  prays  judgment  against  the  defendant  for  the  sum  of  — 
dollars  and  costs. 


-,  attorney  for  plaintiff. 


(Prayer  for  judgment  should  be  for  three  times  the  amount  of  dam- 
ages sustained.) 

§  1307.  Of  practice. — In  order  to  maintain  an  action 
the  plaintiff  need  not  be  in  actual  possession  of  the  land 
at  time  of  the  commission  of  the  trespass,  provided  he  is 
the  owner  thereof,  and  there  was  no  adverse  possession 
in  another.17  But  where  a  plaintiff  in  an  action  for 
trespass  does  not  allege  that  he  was  in  possession,  but 
relies  wholly  on  ownership,  he  must  show,  in  order  to  re- 
cover, that  he  or  his  grantors  obtained  title  from  the  gen- 
eral government.18 

And  a  deed  constituting  a  necessary  link  in  the  chain 
of  such  title  it  admissible  in  evidence,  although  the 
description  of  the  premises  is  defective;  the  defect  may 
be  cured  by  other  competent  evidence.19  Trespass  will 

i«  Code,  Sec.  4310.  Brown  v.  Bridges,  31-138;  Printz  v. 

"Terpenning    v.    Gallup,    8-74;  Cheney,  11-46. 

Mann  v.  Lewis,  4  G.  Greene,  494;  is  Heinrichs  v.  Terrell,  65-25. 

Dorcey   v.    Patterson,    7-420;     see  "Heinrichs  v.  Terrell,  65-25. 


§  1307.]  TKESPASS.  531 

not  be  restrained  by  injunction  when  the  injury  is  not  ir- 
reparable, and  the  trespasser  is  solvent,  and  adequate 
damage  may  be  recovered  at  law.20  But  an  injunction 
will  be  granted  to  prevent  the  continuance  of  a  trespass 
in  defiance  of  the  mandate  of  court.21  A  trespasser  on 
a  railroad  track  who  is  struck  and  injured  by  a  train  can 
not  recover  on  account  of  negligence  of  the  company,  ex- 
cept negligence  of  the  employes  in  not  trying  to  avoid  the 
injury  after  discovery  of  the  danger.22 

And  one  who,  without  license,  walks  or  stops  to  play 
or  loiter  on  a  railway  track  is  a  trespasser.23  If  a  de- 
fendant in  answering  does  not  set  up  title  in  himself,  in 
the  premises  on  which  the  alleged  trespass  was  com- 
mitted, he  will  not  be  permitted  to  give  evidence  of  such 
title.24  It  is  held  that  an  appraisement  made  by  two  of 
the  township  trustees  under  the  provisions  of  the  code, 
for  damage  of  trespassing  animals  is  void  if  no  notice  was 
given  the  third  trustee.25 

20  Bolton  v.  McShane,  67-207.         •  23  Masser  v.  C.,  R.  I.  &  P.  R.  Co., 

21  Ten  Eyck  v.  Sjoburg,  68-625.  68-602. 

22  Morris  v.  C.,  B.  &  Q.  R.  Co.,  45-  a*  Dyson  v.  Ream,  9-51;  iidler  T. 
29;  Masser  v.  C.,  R.  I.  &  P.  R.  Co.,  Smith,  10-587. 

68-602.  as  Barrett  v.  Dolan,  71-94. 


CHAPTER  LXXXIIL 

OF  WASTE. 

See.  1308.  Waste  defined. 

1309.  Of  the  commission  of  waste. 

1310.  Of  the  judgment. 

1311.  When  a  person  will  be  deemed  to  have  committed  waste. 

1312.  Of  the  petition. 

Section  1308.  Waste  defined. — Waste  is  said  by  Mr. 
Justice  Blackstone  to  be  "a  spoil  or  destruction  in  houses, 
gardens,  trees  or  other  corporeal  hereditaments,  to  the 
disherison  of  him  that  hath  the  remainder  or  reversion  in 
fee  simple  or  fee  tail." 

§  1309.  Of  the  commission  of  waste. — If  a  guard- 
ian, tenant  for  life  or  years,  joint  tenant  or  tenant  in 
common  of  real  property,  commit  waste  thereon,  he  is 
liable  to  pay  three  times  the  damages  which  have  re- 
sulted from  such  waste,  to  the  person  who  is  entitled  to 
sue  therefor.1  The  provisions  of  this  section  do  not  ap- 
ply to  an  action  against  a  tenant  under  a  mining  lease 
for  mining  coal  outside  of  the  limits  specified  in  the 
lease.2 

§  1310.  Of  the  judgment. — Judgment  of  forfeiture 
and  eviction  may  be  rendered  against  the  defendant, 
whenever  the  amount  of  damage  so  recovered  is  more 
than  two-thirds  the  value  of  the  interest  such  defendant 
has  in  the  property  injured,  and  when  the  action  is 
brought  by  the  person  entitled  to  the  reversion.3 

§  1311.  When  a  person  will  be  deemed  to  have 
committed  waste. — A  person  whose  duty  it  is  to  prevent 
waste  and  who  fails  to  use  reasonable  and  ordinary  care 
to  avert  the  same,  is  deemed  to  have  committed  it.4 

1  Code,  Sec.  4303.  8  Code,  Sec.  4304. 

2  Oskaloosa  College  v.  Western         *  Code,  Sec.  4305. 
Union  Fuel  Co.,  90-380. 

532 


§  1312.]  WASTE.  533 

§  1312.  Of  the  petition, — The  petition  in  an  action 
for  waste  may  be  in  the  following  form: 

Title,    \ 
Venue.    / 

The  plaintiff  states  that  he  was,  on  the day  of ,  18 — , 

and  ever  since  has  been,  seized  in  fee  simple  of  following  described 
premises  (here  describe  premises),  and  that  on  said  date  he  leased  to 

the  defendant  the  premises  above  described  for  the  term  of years 

by  written  lease  at  the  yearly. rent  of  dollars,  payable  

(state  as  in  lease)  a  copy  of  which  is  hereto  annexed  marked  "A"  and 
made  a  part  hereof.  That  the  said  defendant  in  said  lease  covenanted 
with  the  said  plaintiff  that  he,  the  said  defendant  (here  set  out  the  cove- 
nant in  relation  to  keeping  buildings  and  premises  in  repair),  and  said 
plaintiff  says  that  the  said  defendant  took  possession  of  said  premises 
under  and  by  virtue  of  said  lease  and  still  keeps  the  same;  that  when 
he  took  possession  of  said  premises  they  were  in  good  repair  and  condi- 
tion, and  that  during  the  period  of  said  occupancy  and  on  the  • 

day  of ,  18 — ,  and  at  divers  times  between  that  day  and  the  com- 
mencement of  this  action,  the  said  defendant  spoiled  and  wasted  said 
premises  by  (permitting  the  roofs  of  the  building  thereon  to  become 
open  and  leaky  or  by  breaking  down  the  doors,  here  state  any  other 
acts  of  waste)  and  has  otherwise  committed  waste  and  destruction  in 
and  upon  said  premises,  whereby  the  plaintiff  has  been  damaged  in  the 
sum  of dollars,  no  part  of  which  has  been  paid,  and  the  said  de- 
fendant has  and  does  threaten  to  commit  further  and  other  obstruction 
and  waste  on  said  premises  in  this,  that  he  threatens  to  (here, state 
what  defendant  threatens  to  do,  which  is  claimed  to  be  waste).  Plain- 
tiff, therefore,  prays  judgment  against  the  said  defendant  for  the  sum 

of dollars  and  costs. 

,  attorney  for  plaintiff. 

Where  the  above  form  of  petition  is  in  an  action  where 
it  is  sought  to  enjoin  the  continuance  of  the  commission 
of  waste  before  the  final  determination  of  the  suit,  the 
prayer  for  damages  should  be  three  times  the  amount 
which  has  resulted  from  such  waste.5 

e  Cowles  v.  Shaw,  2-496;  Wilson  v.  Henzel,  Morris,  461. 


CHAPTER  LXXXIV. 

OF  APPELLATE  PROCEEDINGS. 

Sec.  1313.  Of  time  of  taking  an  appeal. 

1314.  When  an  appeal  lies. 

1315.  When  an  appeal  will  not  lie. 

1316.  What  .will  amount  to  a  waiver  of  the  right  to  appeal. 

1317.  Of  the  amount  in  controversy — How  determined. 

1318.  Of  the  form  and  requisites  of  the  certificate. 

1319.  Of  the  time  of  making  the  certificate,  etc. 

1320.  Of  questions  involving  an  interest  in  real  estate. 

1321.  Of  notice  of  appeal. 

1322.  Of  service  of  the  notice — Perfecting  the  appeal. 

1323.  Of  filing  the  notice — Waiving  irregularities,  etc. 

1324.  Of  the  supersedeas  bond. 

1325.  Of  proceedings  when  bond  is  defective — Of  the  supersedeas. 

1326.  Who  may  appeal. 

1327.  Of  the  certification  of  the  record — When  necessary  and  how 

obtained. 

1328.  Of  denials  of  the  transcript  and  the  perfection  of  the  record. 

1329.  Of  certifying  the  records  in  an  equity  case. 

1330.  Of  the  form  of  the  transcript. 

1331.  Of  correctness  of  the  record,  etc. 

1332.  Of  inspection  of  original  papers. 

1333.  Of  the  form  and  requisites  of  the  abstract. 

1334.  Of  the  construction  and  modification  of  rules. 

1335.  When  the  appeal  will  be  dismissed  or  the  judgment  affirmed. 

1336.  When  the  abstract  will  be  deemed  true. 

1337.  When  the  abstract  may  be  attacked  by  motion. 

1338.  Of  the  filing  and  service   of  amended  and   additional   ab- 

stracts. 

1339.  When  the  abstract  must  contain  all  the  evidence,  or  all  the 

instructions. 

1340.  What  is  sufficient  to  show  that  the  abstract  contains  all  the 

evidence. 

1341.  Assignment  of  errors — When  necessary. 

1342.  Of  the  sufficiency  of  the  assignment  of  errors. 

1343.  Of  service,  and  filing  the  assignment  of  errors. 

1344.  Of  the  form  of  the  assignment  and  of  the  effect  of  failing  to 

argue  assignments. 

1345.  Of  the  argument. 

534 


§  1313.]  APPELLATE    PROCEEDINGS.  635 

1346.  Of  the  duty  of  the  clerk. 

1347.  Of  motions. 

1348.  Of  affirmance  of  cases  in  the  supreme  court. 

1349.  Of  reversal  of  cases  in  the  supreme  court. 

1350.  Of  the  effect  of  judgment  in  supreme  court,  and  of  remitting 

part  of  judgment,  etc. 

1351.  Of  the  effect  of  a  prior  decision  on  a  second  appeal. 

1352.  Of  proceedings  in  the  lower  court  after  a  cause  is  reversed 

and  remanded. 

1353.  Of  power  of  supreme  court  and  of  executions  therefrom— 

Restoration  of  property. 

1354.  Of  opinions  of  the  court — Rules. 

1355.  Cases  where  no  motion  for  a  new  trial  is  necessary,  etc. 

1356.  Of  the  lien  of  the  judgment  of  the  supreme  court,  etc. 

1357.  Of  the  procedendo — Of  decrees — Withdrawing  papers. 

1358.  When  causes  will  be  tried  de  novo  in  the  supreme  court. 

1359.  Of  regulations  as  to  the  method  of  trial. 

1360.  What  must  appear  of  record  to  warrant  a  trial  de  novo. 

1361.  Of  the  judge's  certificate  to  the  evidence,  its  requisites,  and 

when  it  must  be  filed. 

1362.  Of  the  clerk's  certificate. 

1363.  Of  the  hearing  and  determination  of  appeals  in  equitabla 

actions. 

1364.  Of  questions  as  to  the  admissibility  of  evidence. 

1365.  When  the  case  will  be  remanded. 

1366.  Of  the  decree  in  a  cause  triable  de  novo. 

1367.  Of  proceedings  in  the  lower  court  in  an  equitable  action  after 

it  is  remanded. 

1368.  Questions  not  raised  in  the  court  below  will  not  be  con- 

sidered on  appeal. 

1369.  Of  the  presumptions  which  obtain  with  reference  to  the  pro- 

ceedings of  the  court  below. 

1370.  Same — Where  the  evidence  is  not  all  before  the  court. 

1371.  What  is  error  without  prejudice — Generally. 

1372.  When  rulings  upon  demurrer,  or  with  reference  to  pleadings, 

will  be  without  prejudice. 

1373.  Of  error  without  prejudice  in  rulings  upon  the  evidence,  etc. 

1374.  Of  error  without  prejudice  in  the  giving  of  instructions. 

1375.  Of  the  discretion  of  the  court  below,  etc. 

1376.  Of  the  petition  for  rehearing,  when  filed — What  confined  to. 

1377.  Of  the  argument. 

1378.  Of  the  action  of  the  court. 

Section  1313.  Of  time  of  taking  an  appeal. — Ap- 
peals may  be  taken  from  the  superior  and  district  courts 
to  the  supreme  court  at  any  time  within  six  months  from 
the  rendition  of  the  judgment  or  order  appealed  from.1 

iCode,  Sec.  4110;  Rules,  Sec.  9;  Oppenheimer  v.  Barr,  71-525. 


536  APPELLATE  PKOCEEDIXGS.  [§  1313. 

In  computing  the  six  months  within  which  an  appeal 
may  be  taken,  the  day  on  which  the  judgment  was  ren- 
dered will  be  excluded,  and  the  corresponding  day  at  the 
end  of  the  time  included.2  The  record  must  show  that 
the  appeal  was  taken  in  time.3  The  time  of  taking  an 
appeal  is  jurisdictional  and  must  affirmatively  appear  or 
the  appeal  wTill  be  dismissed.4  A  failure  to  comply  with 
the  statute  as  to  the  service  of  notice  of  appeal  will  not 
be  excused  because  the  notice  could  not  be  served  within 
the  time  required.5  The  time  for  taking  an  appeal  must 
be  computed  from  the  time  the  decree  or  judgment  is  en- 
tered not  from  the  time  of  making  a  subsequent  order  cor- 
recting mere  formal  defects.6  It  is  not  necessary  that 
the  notice  of  appeal  be  filed  with  the  clerk  within  six 
months,7  nor  that  the  clerk's  fees  for  a  transcript  be  paid 
or  secured  within  that  time.8  But  the  appeal  need  not 
be  perfected  within  the  six  months,  thus  shorthand 
notes  are  not  required  in  all  cases  to  be  filed  within  that 
time.9  An  appeal  from  the  final  judgment  in  due  time 
will  raise  the  objections  to  all  previous  proceedings  in 
the  case,  although  more  than  six  months  have  elapsed 
since  such  proceedings  were  had.10  If  the  judgment 
was,  by  agreement,  rendered  in  vacation,  as  of  the  pre- 
ceding term,  the  time  for  taking  an  appeal  will  begin  to 
run  from  the  time  the  decision  was,  in  fact,  made.11  But 
an  appeal  taken  within  six  months  from  a  decision  of  the 
court  on  a  petition  for  a  new  trial,  but  more  than  six 
months  from  the  rendition  of  the  judgment  on  the  ver- 
dict, will  only  bring  up  for  review  the  action  of  the  court 
relating  to  the  petition  for  new  trial.12  And  an  appeal  in 

zCarleton   v.    Byington,    16-588;  *  Fairburn  v.  Goldsmith,  56-347; 

Parkhill      v.      Brighton,      61-103;  see  Loomis  v.  McKenzie,  57-77. 

Ritchey  v.  Fisher,  85-560.*  a  Hammond  v.  Wolf,  78-227. 

s  Gleason     v.     Collett,     77-448;  10  Halladay  v.   Johnson,   12-563; 

Wambach  v.  Grand  Lodge,  88-313;  Lesure  Lumber  Co.  v.  Mutual   F. 

Taylor  v.  Taylor,  63  N.  W.,  180.  Ins.  Co.,  70  N.  W.,  761. 

*  Wambach  v.  Grand  Lodge,  88-  n  Carter    v.     Sherman,     63-689; 

313;   Taylor  v.  Taylor,  63  N.  W.,  Kendall  v.  Lucas  County,  26-395; 

180.  McMurray  v.  Day,  70-671;  see  Will- 

5  McNider  v.  Sirrine,  84-58.  iams  v.  Wells,  62-747. 

«  Calef  v.  Cole,  93-679.  12  Cohol    v.    Allen,   37-449;    Car- 

i  Baldwin  v.  Tuttle,  23-66.  penter  v.  Brown,  50-451;   see  Pat- 


§  1314.]  APPELLATE  PEOCEEDIXGS.  537 

an  equity  case,  taken  more  than  six  months  after  the 
rendition  of  judgment,  will  not  bring  up  for  the  consider- 
ation of  the  supreme  court  any  of  the  proceedings  prior 
to  the  filing  of  the  motion  for  a  new  trial,  and  the  court 
can  not  try  the  case  de  npvo.13  The  right  of  an  appeal 
must,  in  all  cases,  be  determined  by  the  law  in  force  when 
the  judgment  is  rendered.14  Sometimes  the  judgment 
relates  back  to  a  term  of  court  in  which  case  the  time 
for  taking  the  appeal  is  computed  from  the  date  the  judg- 
ment was  in  fact  entered.15 

§  1314.  When  an  appeal  lies. — An  appeal  lies  from 
the  removal  or  suspension  of  an  attorney.16  The  su- 
preme court  has  appellate  jurisdiction  over  all  judg- 
ments and  decisions  of  all  other  courts  of  record,  as  well 
in  civil  actions  as  in  proceedings  of  a  special  or  inde- 
pendent character.17  Under  Code  Section  4100  an  ap- 
peal will  lie  by  a  city  or  its  board  of  equalization  in  its 
behalf  from  a  judgment  canceling  an  assessment  ren- 
dered on  appeal  from  the  board,  though  the  city  or  board 
had  no  right  to  appeal  in  the  first  instance  to  the  district 
court.  And  an  appeal  lies  from  the  following  orders: 
An  order  made  affecting  a  substantial  right  in  an  action, 
when  it,  in  effect,  determines  the  action,  and  prevents  a 
judgment  from  being  taken;  a  final  order  made  in  special 
proceedings  affecting  a  substantial  right  therein,  and 
made  on  a  summary  application  in  an  action  after  judg- 
ment; when  an  order  grants  or  refuses,  continues  or 
modifies  a  provisional  remedy,  or  grants,  refuses,  dis- 
solves or  refuses  to  dissolve  an  injunction  or  attachment; 
when  it  grants  or  refuses  a  new  trial;  when  it  sustains  or 
overrules  a  demurrer;  an  intermediate  order  involving 
the  merits  and  materially  affecting  the  final  decision; 

terson     v.     Jack,     59-632;     Wish-  and  see  Carter  v.  Davidson,  73-45. 

ard  v.  McNeil,  78-40.  ie  Code,  Sec.  329. 

13  Bosch  v.  Bosch,  66-701.  IT  Code,  Sec.  4100;  Rules,  Sec.  3; 

i*  Rivers  v.  Cole,  38-677;  Daven-  Chicago,  R.  I.  &  P.  R.  Co.  v.  Dey, 

port  v.  Davenport,  etc.,  37-624.  76-278;  In  re  Breese,  82-573;  Farm- 
is  Carter    v.     Sherman,     63-689;  ers  L.  &  T.  Co.  v.  Newton,  66  N. 

Kendall   v.  Lucas  County,  26-395,  W.,  784;  State  v.  Van  Beek,  87-569; 

Hodges  v.  Tama  County,  91-578. 


538  APPELLATE    PEOCEEDIXGS.  [§  1314:. 

an  order  or  judgment  in  habeas  corpus.18  If  any  of  the 
above  orders  or  judgments  are  made  or  rendered  by  a 
judge  the  same  may  be  reviewed  as  if  made  by  the  court.19 
An  appeal  lies  from  an  order  declaring  a  bail-bonu  for- 
feited,20 from  a  decree  of  partition,21  from  a  decree  for  an 
accounting,22  from  an  order  denying  the  district  attorney 
the  right  to  appear  for  the  county,23  and  from  a  decree 
though  a  cross-bill  is  pending,24  and  from  a  final  order 
vacating  a  judgment,25  and  from  a  certiorari  proceed- 
ing,26 and  from  an  order  revoking  a  permit  to  sell  liquor.27 
An  appeal  will  only  lie  from  an  intermediate  order  when 
it  affects  the  merits  of  the  case.28  But  in  such  cases  it 
has  been  held  that  an  appeal  would  lie  from  a  ruling  sus- 
taining a  motion  to  set  aside  an  order  made  in  a  case 
directing  the  payment  of  a  sum  of  money  from  one  party 
to  another,29  and  in  some  instances  from  a  ruling  on  a 
motion  to  change  the  venue  of  a  case.30  So  an  appeal 
lies  from  a  ruling  on  demurrer,31  and  from  a  ruling  on  a 
motion  striking  matter  from  a  petition,  thereby  prevent- 
ing the  introduction  of  evidence,32  and  from  a  ruling 
striking  a  petition  of  intervention  from  the  files,33  and 
from  a  decision  overruling  a  motion  to  set  aside  a  verdict 
in  an  ad  quod  damnum  proceeding,34  and  from  an  order 
dissolving  or  sustaining  an  attachment,35  and  from  a 

is  Code,  Sec.  4101;  Rules,  Sec.  4;  25  Dryden     v.     Wyllis,     51-534; 

Coffin  v.  Eisimrager,  75-30;   In  re  Code,  Sec.  4100. 

Estate   of   Pyle,    82-144;    Price    v.  2«  Iske  v.  Newton,  54-586. 

^Etna  Ins.   Co.,    80-408;    Hawk  v.  27  State  v.  Schmidtz,  65-556. 

Evans,  76-593;    Blair  v.  Blair,  74-  28  Richards  v.  Burden,  31-305. 

311;    Nat'l   Bk.   v.   Chase,   71-120;  29  Guthrie  v.  Guthrie,  71-744. 

Clark  v.  Raymond,  84-251;  Guthrie  so  Lucas  County  v.   Wilson,   59- 

v.   Guthrie,  71-744;    Kell  v.   Lund,  354. 

68  N.  W.,  593;  Weiser  v.  McDowell.  si  Cowen      v.      Boone,      48-350; 
93-772;     Sieffert  &  Wise  L.  Co.  v.  Hampton  v.  Jones,  58-317;  Arnold 
Hartwell,  63  N.  W.,  333;    Bradley  v.     Kreutzer,    67-214;     Code,    Sec. 
v.   Miller,  69  N.  W.,  426;    Bicklin  4101;      Seippel    v.    Blake,     80-143; 
v.  Kendall,  72-490;  Mahaska  Coun-  Thorpe  v.  Smith,  86-410;  Weiser  v. 
ty  State  Bk.  v.  Christ,  82-56;  Bald-  McDowell,  93-772;   Bradley  v.  Mil- 
win  v.  Foss,  71-389;  Kay  v.  Pruden,  ler,  69  N.  W.,  426. 

69  N.  W.,  1137.  32  Stanley  v.  Davenport,  54-463. 
i»  Code,  Sec.  4102;  Rules,  See.  5.          ss  First    Nat'l    Bk.    v.    Gill,    50- 

20  State  v.  Connehan,   57-351.  425;    Bicklin    v.    Kendall,    72-490. 

21  Williams  v.  Wells,  62-747.  34  Burnham  v.  Tho'mpson,  35-421. 

22  McMurray  v.  Day,  70-671.  ss  Johnson     v.      Butler,      1-459; 

23  Clark  v.  Lyon  County,  37-469.  Berry  v.  Gravel,  11-135. 
2*  Lucas  v.  Pickel,  20-490. 


§  1314.]  APPELLATE  PROCEEDINGS.  539 

judgment  against  a  garnishee,36  and  from  an  order  direct- 
ing a  guardian  to  pay  a  judgment,37  and  from  an  order 
of  a  probate  court  in  a  special  proceeding  for  the  discov- 
ery of  assets,38  and  from  an  order  transferring  or  refusing 
to  transfer  a  cause  to  the  equity  docket,39  and  from  an 
order  dismissing  a  special  proceeding  to  compel  an  attor- 
ney to  pay  over  money,40  and  from  an  order  expunging 
a  final  order,41  and  on  final  judgment  from  an  order  upon 
a  motion  for  a  change  of  venue42  and  sometimes  from  a 
ruling  on  a  motion  to  strike,43  and  from  an  order  striking 
out  an  amendment  to  a  petition  which  added  another  de- 
fendant and  alleged  that  he  was  jointly  liable  with  the 
original  defendant  and  which  set  up  ground  for  attach- 
ment against  him,44  and  from  an  order  allowing,  refusing 
or  dissolving  an  injunction,45  and  from  an  order  appoint- 
ing or  refusing  to  appoint  a  receiver,46  and  from  an  order 
recommitting  a  cause  to  arbitrators,47  and  from  an  order 
releasing  the  original  defendants  and  substituting  other 
defendants,48  and  from  an  order  dismissing  an  appeal 
from  justice's  court,49  and  from  a  judgment  rendered 
without  authority,50  and  from  a  judgment  by  confes- 
sion,51 and  from  a  judgment  by  default  or  a  decree  pro 
confesso,52  and  from  a  decree  determining  a  material  is- 
sue,53 and  from  an  order  quashing  an  original  notice,54 
and  from  the  action  of  the  district  or  superior  court  in 
reference  to  violation  of  the  law  regulating  railway  com- 

36  Bebb  v.  Preston,  1-460;  Sinard         47  Brown  v.  Harper,  54-546. 
v.  Gleason,  19-165;  National  Bk.  v.         48  Sunberg  v.  District  Court,  61- 

Chase,  71-120.  597. 

ST  Coffin  v.  Eisiminger,  75-30.  •*»  Cumin  v.  Excelsior  C.  Co.,  63- 

ss  in  re  Estate  of  Pyle,  82-144.  94. 

as  Price  v.  JEtna  Ins.  Co.,  80-408.         so  Petty  v.  Durall,  4  G.  Gr.,  120. 

40  Hawk  v.  Evans,  76-593.  si  Troxel  v.  Clarke,  9-201;     Ed- 

41  Guthrie  v.  Guthrie,  71-744.  gar  v.  Greer,  7-136. 

42  Kell  v.  Lund,  68  N.  W.,  593.  52  Woodward     v.     Whitescarver, 

43  Seiffert  &  Wise  L.  Co.  v.  Hart-  6-1;  Harris  v.  Kramer,  3-543;  Carr 
well,  63  N.  W.,  333.  v.  Kopp,  3-80;    Byington  v.  Cros- 

44  Hay  v.  Pruden,  69  N.  W.,  1137.  thwait,  1-148. 

45  Trustees  v.  Davenport,  7-213;          «s  Lucas  v.  Ptekel,  20-490. 
Bennett  v.  Hetherington,  41-142.  54  Elliott  v.  Corbin,  4-564;  Wor- 

46  Callanan     v.     Shaw,     19-183;  ster  v.  Oliver,  4-345. 
Clark  v.  Raymond,  84-251. 


540  APPELLATE  PBOCEEDIXGS.  [§  1315. 

parries,55  and  from  an  order  granting  or  refusing  a  new 
trial,56  and  in  cases  of  mandamus.57 

§  1315,  When  an  appeal  will  not  lie. — Except  as 
otherwise  stated,  an  appeal  will  not  lie  unless  it  appears 
that  a  judgment  has  been  rendered.58  Thus,  an  appeal 
will  not  lie  from  a  verdict.59  Nor  will  an  appeal  lie  when 
the  party  complaining  has  accepted  the  benefit  of  an  ad- 
judication;60 nor  when  the  judgment  appealed  from  has 
been  voluntarily  paid;61  nor  from  an  order  arresting 
judgment;62  nor  from  an  order  punishing  for  con- 
tempt;63 nor  from  an  order  requiring  a  paper  showing 
an  acceptance  under  the  provisions  of  a  will  to  be  put  on 
record;64  nor  from  an  order  granting  a  rule  to  produce 
books  and  papers;65  nor  from  rulings  not  affecting  sub- 
stantial rights  nor  involving  the  merits  of  the  case;66  nor 
as  a  rule  from  an  order  or  ruling  on  a  motion  to  strike 
allegations  as  irrelevant  or  redundant,67  but  it  is  other- 
wise as  to  a  motion  to  strike  a  cross-petition  from  the 
files.68  In  case  of  certain  intermediate  orders  it  is  held 
an  appeal  will  not  lie  until  final  judgment  is  rendered. 
Of  this  class  are  orders  permitting  the  introduction  of 
further  testimony  in  an  equity  case,  after  it  has  been  re- 
manded by  the  supreme  court,69  and  a  finding  of  facts,70 
and  rulings  on  a  motion  to  supress  depositions,71  and 
generally  orders  granting  or  refusing  a  change  of  venue.72 

55  Code,  Sec.  2137.  es  Cook  v.  Chicago,  R.  I.  &  P.  R. 

se  Newell     v.     Sanford,     10-396;  Co.,  75-169. 

Caffery  v.  Groom,  10-548;  Baldwin  66  Quinn  v.  Capital  Ins.  Co.,  82- 

v.  Foss,  71-389.  550;   Chicago,  R.  I.  &  P.  R.  Co.  v. 

57  Dist.  Twp.  v.  Ind.  Dist.,  72-657.  Dey,  76-278;  Roberts  v.  Malloy,  69 

58  Green  v.  Rouen,  59-83;  Groves  N.  W.,  674;  State  v.  Arns,  72-555; 
v.  Richmond,  58-54.  Ida  County  v.  Woods,  79-148. 

ss  Heath  v.  Groce,  10-591;    Pitt-  67  Allen  v.  Church,  70  N.  W.,  127; 

man  v.  Pittman,  56-769.  Allen    v.    Cook,    71    N.    W., '534; 

eo  Buena  Vista  County  v.  I.,  F.  &  Specht  v.  Spangesberg,  70-488. 

S.  C.  R.  Co.,  55-157;   Ind.  Dist.  v.  es  Mahaska  County  State  Bk.  v. 

Dist.  Twp.,  44-201;  M.  &  M.  R.  Co.  Christ,  82-56. 

v.  Byington,  14-572.  69  Garmoe  v.  Thompson,  65-323. 

ei  Borgalthous  v.   Farmers,  etc.,  TO  Boyce  v.  Wabash  R.  Co.,  63-70. 

36-250;  Hipp  v.  Crenshaw,  64-404.  71  Baldwin  v.  Mayne,  40-687. 

62  Wallis  v.  Sparks,  Morris,  20.  72  Allerton   v.    Eldridge,    56-709; 

es  Code,    Sec.    4468;    Dunham    v.  Groves  v.  Richmond,  58-54;  Horak 

State,    6-245;    First    Cong.    Ch.    v.  v.  Horak,  68-49;  Edgerly  v.  Stew- 

Muscatine,  2-69.  art,  86-87. 

ei  In  re  Estate  of  Slauson,  82-366. 


§  1316  J  -1PPHLULTE    PROOEEDIITOS.        .  641 

Nor  will  an  appeal  lie  from  an  order  overruling  a  mo- 
tion to  dismiss  proceedings  under  a  writ  of  habeas" 
corpus;73  nor  from  an  order  sustaining  exceptions  to  in- 
terrogatories to  be  answered  by  the  mother  of  a  child  in 
a  bastardy  proceeding.74 

In  the  following  cases  it  seems  no  appeal  will  lie: 
When  a  party  procured  the  judgment  from  which  he 
seeks  to  appeal.75  When  a  stay  of  execution  is  taken,76 
or  from  an  order  of  continuance,77  or  when  the  court  re- 
fuses to  compel  a  member  of  the  bar  to  prosecute  a  dis- 
barment proceeding,78  or  from  an  order  requiring  secur- 
ity for  costs,79  or  when  an  intermediate  order  is  one  not 
contemplated  by  law.80  Ordinarily  error  in  intermedi- 
ate orders  upon  questions  of  practice,  the  admission  of 
evidence  and  the  like,  from  which  a  direct  appeal  can  not 
be  prosecuted,  may  be  urged  upon  an  appeal  from  the 
final  judgment,  except  as  stated  in  this  section;81  but  to 
be  thus  raised  the  record  must  show  that  a  final  judg- 
ment was  rendered.82  And  it  seems  one  may  elect,  in 
cases  where  an  appeal  is  allowed  from  an  intermediate 
order,  to  appeal  at  the  time  therefrom,  or  to  do  so  on  ap- 
peal from  the  final  judgment.83 

An  appeal  from  the  final  judgment  brings  up  for  review 
all  intermediate  rulings  to  which  exceptions  are  prop- 
erly taken.84  A  direct  appeal  will  not  lie  from  a  ruling 
refusing  to  strike  out  part  of  a  petition.85 

§  1316,  What  will  amount  to  a  waiver  of  the 
right  to  appeal. — The  right  to  appeal,  when  such  right 
exists,  may  be  waived  by  the  acts  of  the  party  entitled 
thereto.  Thus  when  a  party  after  perfecting  his  appeal 
from  a  judgment,  consents  to  the  transfer  of  the  cause  to 

73  Smith  v.  Bigelow,  19-459.  so  Battle  v.  Lowery,  46-49. 

74  State  v.  Arns,  72-555.  si  Richards  v.  Burden,  31-305. 

TO  Hughes  v.  Feeter,  23-547.  82  Shannon  v.  Scott,  40-629;  Jor- 

7«  Code,  Sec.   3998;    Seachrist  v.  dan  v.  Henderson,  19-565. 

Newman,  19-323.  ss  Jones  v.  Chicago  &  N.  W.  R. 

7T  Jaffray  v.  Thompson,  65-323.  Co.,  36-68. 

78  Byington     v.     Moore,     70-206;  84  Palmer  v.  Rogers,  70-383;   Le- 

Code,  Sec.  4101.  sure  Lumber  Co.  v.  Mut.  Fire  ins. 

7»  Des    Moines    Valley,    etc.,    v.  Co.,  70  N.  W.,  761. 

Henderson,  38-446.  ss  Specht  v.  Spangenberg,  70-488. 


542  APPELLATE  PEOCEEDIXQS.  [§  1317. 

another  court  for  trial  he  waives  his  appeal.86  And  he 
waives  such  right  to  appeal  from  a  judgment  when  he 
brings  an  action  in  equity  to  enjoin  its  collection.87  And 
an  error  in  dismissing  a  former  action  is  waived  by  bring- 
ing a  new  action  for  the  same  indebtedness.88  But  the 
fact  that  there  is  another  remedy  for  the  error  complained 
of  will  not  take  away  the  right  of  appeal  from  an  erron- 
eous judgment  or  decision  in  any  case  where  such  ap- 
peal is  authorized.89  Nor  will  the  acceptance  of  a  por- 
tion of  the  judgment  admitted  to  be  due  prevent  an  ap- 
peal from  that  part  of  it  claimed  to  be  erroneous.90  Nor 
will  the  acceptance  by  the  county  treasurer  of  a  fine  im- 
posed by  a  justice  of  the  peace,  deprive  the  State  of  the 
right  to  appeal.91  Nor  will  the  involuntary  payment  of 
a  judgment  estop  the  party  from  appealing.92  So  the  ac- 
ceptance of  a  tender,  in  some  cases,  will  not  waive  the 
right  of  appeal.93  Nor  will  the  issuing  of  an  execution 
(even  after  transcript  is  filed  in  the  supreme  court)  when 
nothing  is  realized  thereon.94  Nor  will  the  filing  of  a 
transcript  of  the  judgment  in  another  county.95  If  the 
right  of  appeal  has  been  waived  the  appeal  will  be  dis- 
missed on  motion.96  An  agreement  not  to  appeal  from 
a  judgment  in  consideration  of  a  reduction  thereof  is  not 
contrary  to  public  policy.97 

§  1317.  Of  the  amount  in  controversy — How  de- 
termined.— No  appeal  can  be  taken  in  any  case  in  which 
the  amount  in  controversy  between  the  parties  as  shown 
by  the  pleadings  does  not  exceed  one  hundred  dollars, 
unless  the  trial  judge  certifies  during  the  term  in  which 
the  judgment  is  entered  that  the  cause  is  one  in  which 
an  appeal  should  be  allowed,  and  upon  such  certificate 

««  Lillie  v.  Skinner,  46-329.  »s  Dudman    v.    Earl,    49-37;    see 

ST  Gordon  v.  Ellison,  9-317.  Jewell  v.  Reddington,  57-92. 

ss  Liebrick  v.  Stable,  66-749,  and          »*  Hornish  v.  Peck,  53-157. 
No.  87.  95  Tama  County  v.  Melendy,  55- 

sa  Wilson  v.  Sborick,  21-332.  395. 

so  Upton  Mfg.  Co.  v.  Huiske,  69-          96  ind.   Dist.   v.    Dist.    Twp.,   44- 

557.  201;  see  Crane  v.  Guthrie,  48-693 

si  State  v.  Tait,  22-140.  "  Lundon  v.  Waddick,  67  N.  W., 

92  Grim  v.  Semple,  39-570;    Bur-  388. 
rows  v.  Stryker,  45-700. 


§  1317.]  APPELLATE  PEOCEEDINGS.  643 

being  filed  the  same  is  appealable  regardless  of  the 
amount  in  controversy.  But  this  limitation  does  not  af- 
fect the  right  of  appeal  in  cases  which  involve  any  inter- 
est in  real  property.98  Nor  is  the  right  of  appeal  affected 
by  the  remission  of  any  part  of  the  verdict  or  judgment 
returned  or  rendered.  It  will  be  seen  it  must  appear 
from  the  pleadings  that  it  was  possible  for  the  court 
properly  to  render  judgment  against  one  of  the  parties 
for  more  than  one  hundred  dollars."  And  in  determin- 
ing the  amount  the  allegations  of  the  pleadings  and  not 
the  prayer  will  govern,1  and  when  a,  part  of  the  claim 
is  conceded  the  amount  in  controversy  is  the  balance,2 
and  this  is  so  when  by  tender  the  claim  is  reduced  below 
one  hundred  dollars,3  and  the  amounts  of  an  original 
claim  and  of  a  counter  claim  can  not  be  added  together 
to  determine  the  amount  in  controversy.4  If  plaintiff's 
claim  is  admitted  and  a  counter  claim  pleaded,  it  deter- 
mines the  amount  in  controversy.5  If  the  defendant 
claims  a  credit  for  more  than  one  hundred  dollars  on  a 
claim  of  less  than  that  amount,  but  interposes  no  counter 
claim,  the  amount  in  controversy  is  the  amount  of  plain- 
tiff's claim.6  When  the  plaintiff  claims  more  than  one 
hundred  dollars,  but  introduces  no  evidence  in  support 
of  part  of  it,  such  part  will  be  deemed  abandoned  and  not 
considered  in  determining  the  amount  in  controversy.7 

»s  Code,    Sec.    4110;    Van   Sickle  Ormsby  v.  Nolan,  69-130;  Harring- 

v.     Downs,     72-624;      Chilton      v.  ton  v.  Pierce,  38-260;    Babcock  v. 

C.,  R.  I.  &  P.  R.  Co.,  72-689;  Dist.  Board,    etc.,    65-110;      Henkle     v. 

Twp.  v.  Ind.  Dist.,  72-657;    Rules,  Keota,  68-334;  Ruiter  v.  Plate,  77- 

Sec.  9;  Thurston  v.  Lamb,  90-363;  17;    Buckland  v.  Shephard,  77-329; 

Buckland     v.     Shephard,     77-329;  Schultz  v.  Holbrook,  86-569;    Fill- 

Schultz  v.  Holbrook,  86-569;    Fill-  more  v.   Hintz,  90-758;   Thompson 

more  v.  Hintz,  90-758;  Central  City  v.  Jackson,  93-376. 

v.  Treat,  70  N.  W.,  110;    Hiatt  v.  i  Cooper   v.    Dillon,    56-367;    In- 

Nelson,  69  N.  W.,  553;   Thompson  corporated  town,  etc.,  v.  Treat,  70 

v.  Jackson,  93-376;   Tuthill  Spring  N.  W.,   110;    Fullerton     v.     Cedar 

Co.  v.  Smith,  90-331;  Brock  v.  Barr,  Rapids  &  M.  C.  R.  Co.,  70  N.  W., 

70-399;  Edwards  v.  Cosgro,  71-296;  106;     Hiatt   v.   Nelson,   69  N.   W., 

Koltz  v.  Messenbrink,  74-242;  Grif-  553. 

fin  v.  Harriman,  74-436;    State  v.  2  Thompson  v.  French,  57-559. 

McCullough,  77-450;    Dist.  Twp.  v.  3  Marlow  v.  Marlow,  56-299. 

Ind.  Dist.,  72-687;  Farley  v.  Geishe-  *  Madison  v.  Spitznogle,  58-369; 

ker,  78-453;    Geyer  v.  Douglass,  85-  Fox  v.  Duneau,  60-321. 

93;    Democrat  Pub.   Co.   v.   Lewis,  »  Alsip  v.  Hard,  38-697. 

90-304.  e  Kuntz  v.  Hoffman,  65-260. 

sa  Madison  v.  Spitznogle,  58-369;  7  Same  as  No.  6. 


544  APPELLATE  PROCEEDINGS.     [§§  1318,  1319. 

In  case  an  appeal  from  a  justice's  court  is  consolidated 
with  an  action  in  the  district  court  and  the  aggregate 
amount  in  controversy  exceeds  one  hundred  dollars,  an 
appeal  will  lie.8  Whether  interest  will  be  taken  into 
consideration  in  determining  the  amount  will  depend  on 
circumstances,9  and  costs  will  not  be  taken  into  consid- 
eration in  determining  the  amount  in  controversy.10  In 
replevin,  where  the  defendant  only  claims  an  interest  in 
the  property  less  than  one  hundred  dollars  in  value,  such 
interest  determines  the  amount  in  controversy.11 

§  1318.  Of  the  form  and  requisites  of  the  certifi- 
cate.— The  change  in  the  statute  renders  all  decisions 
construing  that  part  of  the  old  statute  touching  setting 
out  the  questions  of  law  which  it  was  desired  to  have  de- 
cided of  no  further  use  and  they  have  therefore  been 
omitted.  The  provisions  of  the  statute  under  considera- 
tion are  constitutional.12 

§  1319.  Of  the  time  of  making  the  certificate,  etc. 
— The  certificate  must  be  made  before  the  adjournment 
of  the  term  of  court  at  which  the  judgment  was  entered.13 
The  certificate  can  not,  by  agreement,  be  made  in  vaca- 
tion.14 It  can  not  be  made  until  the  case  is  finally  dis- 
posed of.15  If,  however,  it  appears  that  the  certificate 
was  signed  in  time,  it  will  be  presumed,  in  the  absence 
of  anything  to  the  contrary,  that  it  was  filed  within  the 
proper  time.16  The  obtaining  of  the  certificate  is  not  a 
matter  of  right.17  The  appellant  can  not  question  the 

s  Brock  v.  Barr,  70-399;  Edwards  Diat.  Twp.,  51-206;  Independ- 

v.  Cosgro,  71-296;  and  see  Tuthill  ence  v.  Purdy,  48-675;  Rose  v. 

Spring  Co.  v.  Smith,  90-331.  Wheeler,  49-52;  Lomax  v.  Plet- 

» Dryden  v.  Wyllis,  51-534;  cher,  40-705;  Rivers  v.  Cole, 

Holmes  v.  Hull,  48-177;  Hays  v.  C.,  38-677;  Hershfield  v.  First  Nat'l 

B.  &  Q.  R.  Co.,  64-593;  Klotze  v.  Bk.,  39-699;  Nicely  v.  Rogers,  39- 

Messenbrink,  74-242;  Griffin  v.  441;  Hinesley  v.  Mahaska  County, 

Harriman,  74-436.  69-511;  Morrison  v.  Ross,  90-524; 

10  Hakes  v.  Dott,  54-17;  Braden-  Sayles    v.    Smith,    71-241;     Rules, 
berger  v.  Rigler,  68-300;  Ardery  v.  Sec.  9. 

C.,  B.  &  Q.  R.  Co.,  65-723;  but  see  1*  Fallon  V.  Dist.  Twp.,  51-206. 

State  v.  McCullough,  77-450.  «  Hickok  v.  Buell,  51-655. 

11  Mohme  v.  Livingstone,  54-458;  i«  Long  v.  C.,  M.  &  St.  P.  R.  Co.. 
Davis  v.  Upright,  54-752-.  64-541. 

12  Andrews  v.  Burdick,  62-714.  "  Meeker  v.  C.,  M.  &  St.  P.  R. 

13  Code,     Sec.     4110;     Fallen    v.  Co.,  64-631. 


§§  1320,  1321.]     APPELLATE  PROCEEDINGS.  545 

correctness  of  the  certificate  signed  by  the  judge,18  but 
its  sufficiency  is  a  jurisdictional  matter,  and  will  be  taken 
notice  of  by  the  court.19  The  cases  cited  are  to  be  read  in 
the  light  of  the  requirement  of  the  present  statute  which 
permits  the  certificate  to  be  made  during  the  term. 

§  1320.  Of  questions  involving  an  interest  in  real 
estate. — An  action  to  foreclose  a  mechanic's  lien  was  held 
not  to  be  a  question  involving  an  interest  in  real  estate.20 
Nor  does  the  fact  that  it  is  sought  to  establish  a  lien, 
special  or  general,  upon  real  estate,  make  the  case  one  in- 
volving an  interest  in  real  property.21  But  when  there  is 
involved  the  question  of  the  right  of  the  public  to  occupy 
and  use  real  estate  as  a  highway,  the  case  comes  within 
the  exception  provided  by  the  statute,  and  is  appealable 
regardless  of  the  amount  in  controversy.22  An  action  to 
quiet  title  as  against  a  sheriff's  deed  on  the  ground  that 
the  property  was  a  homestead  involves  an  interest  in 
real  estate.23 

§  1321.  Of  notice  of  appeal. — An  appeal  is  taken  and 
perfected  by  the  service  of  a  notice  in  writing  on  the  ad- 
verse party,  his  agent,  or  any  attorney  who  appeared  for 
him  in  the  cause  in  the  court  below,  and  also  upon  the 
clerk  of  the  court  wherein  the  proceedings  were  had, 
stating  the  appeal  from  the  same,  or  from  some  specific 
part  thereof,  defining  such  part.24  But  if  the  appeal  be 
from  part  of  an  order,  or  from  one  of  the  judgments  of  a 
final  adjudication,  or  from  part  of  a  judgment,  it  will  not 
disturb,  delay  or  affect  the  rights  of  any  party  to  any 
judgment,  or  part  of  a  judgment,  or  order,  not  appealed 
from,  but  the  same  will  proceed  as  if  no  appeal  had  been 
taken.25 

The  notice  may  be  in  the  following  form : 

is  Hager  v.  Adams,  70-746.  23  Jones  v.  Blumenstein,  77-361. 

i»  White  v.  Beatty,  64-331;  Beach  24  Kennedy    v.    Rosier,    71-671; 

v.  Donovan,  74-543.  Weiser  v.   Day,  77-25;    Searles  v. 

20  Andrews  v.  Burdick,  62-714.  Lux,  86-61;  Geyer  v.  Douglass,  85- 

21  Colyar  v.  Pettit,  63-97;   Johns  93;   Lesure  Lumber  Co.  v.  Mutual 
v.  Pattee,  61-393;  Brown  v.  Smith,  F.  Ins.  Co.,  70  N.  W.,  761;   Code, 
76-315.  Sec.  4114;  Rules,  Sec.  13. 

22  MrBurney  v.  Graves,  66-314.  25  Code,  Sec.  4113. 

Vol.  11—35 


546  APPELLATE    PROCEEDINGS.  [§  1322. 

FORM  OF  NOTICE  OF  APPEAL. 
Title, 

Venue. 


To  the  above  named  plaintiff,  or  to ,  his  attorney,  and  to  , 

clerk  of  said  court: 

You  are  hereby  notified  that  the  defendant  in  said  action  has  ap- 
pealed from  the  judgment  (or  some  specified  part  thereof,  or  from  some 
specified  order  made  in  the  cause),  of  the  (name  of  court),  rendered  in 

favor  of  plaintiff,  at  the term  thereof,  on  the  —      —  day  of  —     — , 

18 — ,  to  the  supreme  court  of  Iowa,  and  that  said  appeal  will  come  on  for 

hearing  and  trial  in  said  court  at  the term  thereof,  to  be  held  at 

Des  Moines,  commencing  on  the day  of ,  18 — . 

,  attorney  for  defendant. 

This  notice  of  appeal  must  be  served  at  least  thirty 
days,  and  the  cause  filed  and  docketed  at  least  fifteen 
days  before  the  first  day  of  the  next  term  of  the  court  to 
which  the  appeal  is  taken,  or  the  case  will  not  be  submit- 
ted at  that  term,  unless  by  consent  of  parties.26  And  if 
the  appeal  is  taken  less  than  thirty  days  before  the  term, 
it  must  be  so  filed  and  docketed  before  the  next  succeed- 
ing term.27 

§  1322.  Of  service  of  the  notice— Perfecting  the 
appeal. — An  appeal  is  not  perfected  until  the  notice 
above  stated  is  served  upon  both  the  party  and  the 
clerk.28  A  notice  not  signed  is  not  good.29  A  failure 
to  specify  the  term  of  court  will  not  be  fatal.30 

The  service  of  the  notice  is  essential  to  give  the  su- 
preme court  jurisdiction.31  The  service  of  all  notices  of 
appeal,  is  the  same  as  is  provided  for  an  original  notice 
in  the  district  court,  and  they  may  be  served  by  the  same 
person  and  returned  in  the  same  manner,  and  the  or- 
iginal notice  of  the  appeal  must  be  returned  immedi- 
ately after  service  to  the  office  of  the  clerk  of  the  district 
court  where  the  suit  is  pending.32  All  other  notices  con- 

2«  Code,   Sec.   4116;    Rules,    Sec.  so  Geyer  v.  Douglass,  85-93. 

15.  siMcClellan  v.  McCleilan,  2-312; 

"Code,  Sec.   4116;    Rules,    Sec.  Lewis  v.  Miller,  4  G.  Gr.,  95;  Hunt 

15;  Micldey  v.  Tomlinson,  79-383.  v.  Clark,  46-291;  see  Horst  v.  Wag- 

28  Code,    Sec.    4114;    Rules,    Sec.  ner,    43-373;     Phillips    v.    Follett, 
13;  Phillips  v.  Follett,  69-39.  69-39. 

29  Doerr  v.  Southwestern  Mut.  L.  32  Code,  Sec.  4115;  Rules,  Sec.  14; 
Assn.,  92-39.  Littleton  Sav.  Bk.  v.  Osceola  Land 


§  1322.]  APPELLATE   PEOCEEDINGS.  54:7 

nected  with  or  growing  out  of  the  appeal  must  be  served 
and  the  return  made  in  like  manner,  and  filed  in  the  office 
of  the  clerk  of  the  supreme  court,  and  all  notices  when 
filed  become  a  part  of  the  record.  Service  of  the  notice 
can  not  be  made  by  a  party  to  the  action.33  Under  the 
law  there  is  no  provision  for  making  service  of  such  a 
notice  by  leaving  a  copy  with  a  member  of  the  party's 
family,34  and  service  of  the  notice  upon  the  wife  of  the  at- 
torney for  the  appellee  is  not  good.35  Service  may  be 
made  by  a  written  acknowledgment  made  by  the  person 
on  whom  it  is  served.36  Service  on  a  guardian  ad  litem 
of  an  insane  person  has  been  held  good.37  Cases  of  ser- 
vice on  attorney.38  In  an  action  against  a  city  and  the 
board  of  equalization,  notice  of  appeal  served  on  the 
mayor  or  city  clerk  is  sufficient.39 

And  it  may  be  made  by  taking  an  acceptance  of  ser- 
vice signed  by  the  party.  Such  acceptance  signed  by 
the  deputy  clerk  with  the  name  of  his  principal  by  him  as 
deputy,  is  a  good  service.40 

Such  acceptance  may  be  in  the  following  form: 

.  FORM  OF  ACCEPTANCE  OF  SERVICE  OF  NOTICE  OF  APPEAL. 

Due  and  legal  service  of  the  within  notice  of  appeal  is  hereby  ac- 
knowledged and  a  copy  of  the  same  received  this day  of , 

18—, 


-,  attorney  for  plaintiff. 


So,  in  a  proper  case  service  may  be  made  by  publica- 
tion as  in  other  cases;  and  if  the  party  is  a  non-resident, 
but  has  an  agent  residing  in  this  State,  service  may  be 
made  on  him,  and  will  take  the  place  of  service  by  publi- 
cation, and  the  proof  of  such  service  must  be  made  in  the 
manner  provided  for  the  proof  of  service  of  original  notice 

Co.,  76-660;   Brundage    v.    Cheno-  se  Sanxey  v.  Iowa  City,  etc.,  68- 

worth,  70  N.  W.,  211;    Christie  v.  542. 

Life  Indemnity,  etc.,  Co.,  82-360.  37  Shoemake  v.  Smith,  80-655. 

33  Draper     v.     Taylor,     47-407;  38  Goodwin    v.    Milliard,  76-555; 
Marion  County  v.  Stanfield,  8-406.  Bruner  v.  Wade,  85-666. 

34  Draper  v.  Taylor,  47-407.  39  Farmers  Loan  &  Trust  Co.  v. 
.     85  Webster  v.  Carson,  69-243.            City  of  Newton,  66  N.  W.,  784. 

40  Same  as  No.  36. 


548  APPELLATE  PEOCEEDINGS.  [§  1323. 

on  non-resident  defendants.41  If  service  is  not  made  on 
the  clerk  the  appeal  will  be  dismissed.42 

§  1323.  Of  filing  the  notice— Waiving  irregulari- 
ties, etc. — While  the  notice  should  at  once  after  service 
be  filed  with  the  clerk,  yet  it  is  not  necessary.43  When 
four  years  intervened  between  the  taking  of  the  appeal 
and  the  filing  of  the  transcript,  it  was  held  that  an  addi- 
tional notice  must  be  served  on  the  appellee.44 

Where  an  appeal  was  had  from  an  order  substituting  a 
third  party  in  place  of  the  sheriff  against  whom  the  ac- 
tion was  brought,  it  was  held  that  the  appeal  might  be 
prosecuted  against  the  sheriff  without  notice  being 
served  upon  the  substituted  party,  such  party  having 
joined  the  sheriff  in  asking  for  such  substitution.45  A 
notice  of  appeal  from  a  judgment  brings  up  all  the  ob- 
jections properly  saved  on  the  trial  including  the  motion 
for  a  new  trial.46  An  appearance  in  the  supreme  court 
waives  all  irregularities  in  taking  the  appeal.47  But  it 
will  not  give  jurisdiction  when  the  court  below  had 
none.48  Nor  will  such  appearance  by  filing  an  abstract 
waive  objection  on  account  of  want  of  notice,  if  such  ap- 
pearance is  made  before  the  expiration  of  the  time  for 
serving  notice.49  Nor  will  it  waive  the  giving  of  notice 
of  an  appeal.50  Service  of  notice  of  appeal  is  jurisdic- 
tional  and  the  record  must  show  such  service  or  the  case 
will  be  dismissed.51  Where  a  board  of  supervisors  is 

*i  Code,    Sec.    4115;    Rules,    Sec.  *?  Romaine    v.     Commissioners, 

14;  McClellan  v.  McClellan,  2-312.  Morris,  357;  Morrow  v.  Carpenter, 

«lnd.  Dist.  v.  Apperle,  76-238;  1  G.  Gr.,  469. 

McManus  v.  Smith,  76-576;     Red-  *s  Long  v.  Long,  Morris,  381. 

head    v.    Baker,    80-162;     State    v.  *a  Brier  v.  C.,  B.  &  P.  R.  Co.,  66- 

Clossner,  84-401;  Merchant  v.  Sole-  602. 

man,   63   N.   W.,   464;    Wheeler   &  BO  Piummer  v.  People's  Nat'l  Bk., 

Wilson  Mfg.  Co.  v.  Sterrett,  62  N.  73-752;  Ash  v.  Ash,  90-229. 

W.,  675;  Ainslie  v.  Wynn,  65  N.  W.,  BI  Michel  v.  Michel,  74-577;  Bow- 

401.  man   v.    Day,    86-746;     Norwegian 

43  Baldwin  v.  Tuttle,  23-66;  Brier  Plow  Co.  v.   Bruning,   65   N.    W., 

v.  C.,  B.  &  P.  R.  Co.,  66-602;  Little-  984;  Brandenburg  v.  Keller,  69  N. 

ton  Sav.  Bk.  v.  Osceola  Land  Co.,  W.,  448;    Kimball    v.  Barngrover, 

76-660.  80-768;    Talbot    v.    Noble,    75-167; 

«  Byington  v.  Robinson,  16-591.  Smith     v.     Des     Moines,     84-685; 

45  Sunberg  v.  Babcock,  61-601.  Names  v.  Names,  74-213;   Roundy 

4«  Gulliher  v.  C.,  R,  I.  &  P.  R.  v.  Kent,  75-662;  McManus  v.  Swift, 

Co.,  59-416.  76-576;   Whitton  v.  Fuller,  77-599; 


§  1324.]  APPELLATE  PROCEEDINGS.  549 

sued  notice  served  upon  the  county  auditor  will  not  be 
good.52 

§  1324.  Of  the  supersedeas  bond. — An  appeal  will 
not  stay  proceedings  on  the  judgment  or  order,  or  any 
part  thereof,  unless  the  appellant  causes  to  be  executed, 
before  the  clerk  of  the  court  which  rendered  the  judg- 
ment or  order,  by  one  or  more  sufficient  sureties,  to  be 
approved  by  such  clerk,  a  bond  to  the  effect  that  the  ap- 
pellant will  pay  to  the  appellee  all  costs  and  damages 
that  shall  be  adjudged  against  the  appellant  on  the  ap- 
peal; also,  that  he  will  satisfy  and  perform  the  judgment 
or  order  appealed  from,  in  case  it  shall  be  affirmed,  and 
any  judgment  or  order  which  the  supreme  court  may  ren- 
der or  order  to  be  rendered,  by  the  inferior  court,  not  ex- 
ceeding in  amount  or  value  the  original  judgment  or  or- 
der, and  all  rents  or  damages  to  property,  during  the 
pendency  of  the  appeal,  out  of  the  possession  of  which 
the  appellee  is  kept  by  reason  of  the  appeal.  If  the  bond 
is  intended  to  stay  proceedings  on  only  a  part  of  the  judg- 
ment or  order,  it  must  be  varied  so  as  to  secure  the  part 
stayed  alone.  When  such  bond  has  been  approved  by 
the  clerk  and  filed,  he  must  issue  a  written  order,  requir- 
ing the  appellee  and  all  others  to  stay  all  proceedings 
under  such  judgment  or  order,  or  so  much  thereof  as  is 
superseded,  as  the  case  may  be.53  In  cases  wherein  the 
appellant  has  perfected  his  appeal  to  the  supreme  court, 
and  the  clerk  of  the  lower  court  has  refused  for  any 
reason  to  approve  the  appeal  bond  offered,  or  makes  the 
penalty,  therein  too  large,  or  the  conditions  thereof  un- 
just, the  appellant  may  apply  to  the  district  court  or  to 

State  v.  Closner,  84-401;  First  Nat'l  State  v.   Dolezal,   68  N.   W.,   917; 

Bk.  v.  City  Council  of  Albia,  86-28;  Swigart  v.  Jackson  County,  66  N. 

Farrell  v.  Muscatine,  85-753;  Man-  W.,   881;    Sanger  v.   Skidmore,   66 

del  v.  Friedman,  85-734;    Donnelly  N.  W.,  176. 

v.  Cedar  County,  75-536;    Schooley  ™  Polk  v.  Foster,  71-26. 

v.  Globe  Ins.  Co.,  76-78;  Iowa  City  "  Code,    Sec.    4128;    Rules,    Sec. 

v.  Johnson  County,  68  N.  W.,  815;  32;     Phelan    v.     Johnson,    80-727; 

State  v.  McNamara,  66  N.  W.,  192;  Lindsay  v.  Clayton  District  Court, 

Flagler  v.  Cameron,  68  N.  W.,  580;  75-509;  Allen  v.  Church,  70  N.  W.t 

State   v.   Benard,   68  N.    W.,    433;  127;  Allen  v.  Cook,  71  N.  W.,  534. 

State  v.  Foresythe,  64  N.  W.,  265; 


550  APPELLATE   PEOCEEDIXGS.  [§ 

a  judge  thereof,  who  shall  fix  the  amount  and  conditions 
of  the  bond  and  approve  the  same.54  The  application 
verified  by  the  affidavit  of  the  appellant  or  his  attorney 
must  contain  a  brief  statement  of  the  nature  of  the  action 
in  which  the  appeal  was  taken,  of  the  judgment  or  order 
appealed  from,  of  the  steps  taken  by  the  appellant  with 
reference  to  his  appeal,  and  of  his  giving,  or  offering  to 
give,  an  appeal  bond,  of  the  action  of  the  clerk  of  the 
court  below  with  reference  to  such  bond,  and  wherein  he 
has  acted  wrongfully.  Pending  the  disposition  thereof 
the  judge  may,  by  a  written  order,  recall  and  stay  all 
proceedings  under  the  order  or  judgment  appealed  from 
until  the  decision  of  the  application.54  The  bond 
when  approved  must  be  filed  with  the  clerk  who 
must  issue  a  written  order  to  stay  proceedings.55  Such 
bond  may  be  in  the  following  form: 

FORM  OF  SUPERSEDEAS  BOND. 

Know  all  men  by  these  presents  that  we,  ,  principal,  and 

and  ,  sureties,  are  held  and  firmly  bound  unto  ,  in 


the  sum  of dollars,  lawful  money  of  the  United  States,  well  and 

truly  to  be  paid  to  the  said ,  his  heirs,  executors  and  assigns. 

The  condition  of  this  obligation  is  such  that  whereas,  the  said 

has  appealed  from  the  judgment  (or  order,  identifying  it)  of  the  district 

court  of  the  State  of  Iowa,  in  and  for  county,  rendered  on  the 

-  day  of  ,  18 — ,  in  an  action  then  pending  in  said  court, 

•wherein  said was  plaintiff  and  the  said was  defendant 

Now,  if  the  said  appellant  shall  pay  to  the  said  appellee  all  costs 
and  damages  that  shall  be  adjudged  against  said  appellant  on  said  ap- 
peal, and  shall  also  satisfy  and  perform  the  said  judgment  (or  order) 
appealed  from,  in  case  it  shall  .be  affirmed,  and  any  judgment  or  order 
which  the  supreme  court  may  render  or  order  to  be  rendered  by  the 
said  district  court,  and  all  rents,  or  damages  to  the  property  during  the 
pendency  of  the  appeal  out  of  the  possession  of  which  the  appellee  is 
kept  by  reason  of  the  appeal,  then  this  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue. 

Dated  this day  of ,  18 — . 


principal, 
sureties. 


(Add  justification.) 
a*  Code,  Sec.  4132;  Rules,  Sec.  33.         SB  Code,  Sec.  4132;  Rules,  Sec.  33. 


§  1325.]  APPELLATE  PKOCEEDINGS.  551 

Said  bond  must  be  approved  in  form  heretofore  given, 
and  the  sureties  must  justify  as  provided  by  law.  When 
the  judgment  or  order  to  be  stayed  is  for  the  payment  of 
money,  the  penalty  should  be  at  least  twice  the  amount 
of  the  judgment  and  costs,  but  in  other  cases  the  condi- 
tion must  be  to  save  the  appellee  harmless  from  the  con- 
sequences of  the  appeal.  In  no  case  can  the  penalty  be 
less  than  one  hundred  dollars.66  The  appeal  is  not  per- 
fected by  the  filing  of  the  supersedeas  bond  alone;  the 
notice  must  also  be  served,  and  until  it  is  served  on  the 
clerk  he  need  not  recall  an  execution,  or  issue  an  order 
to  stay  proceedings  thereunder.67  The  bond,  though  ir- 
regular in  form,  may  still  be  sufficient,58  and  may  be 
amended.59  An  order  of  discharge  in  a  habeas  corpus 
proceeding  cannot  be  suspended  by  the  giving  of  a  super- 
sedeas bond.60 

§  1325.  Of  proceedings  when  bond  is  defective.— 
Of  the  supersedeas. — The  appellee  may  move  the  court 
rendering  the  judgment  or  making  the  order  appealed 
from  or  the  supreme  court  or  a  judge  of  either  court,  if  in 
vacation,  upon  ten  days'  notice  in  writing  to  appellant  to 
discharge  the  bond  on  account  of  defect  in  substance  or 
insufficiency  in  security,  which  motion,  if  well  taken, 
must  be  sustained,  unless  appellant  shall,  within  a  day 
to  be  fixed  in  the  order  made  and  filed  therein,  give  a  new 
and  sufficient  bond  as  required  by  said  order.  If  the 
new  bond  is  not  given,  proceedings  shall  be  had  in  the 
lower  court  as  though  no  bond  had  been  given  in  the  first 
instance.61 

But  another  supersedeas  may  be  issued  by  the  clerk 
upon  the  execution  before  him  of  a  new  and  lawful  bond 
with  sufficient  sureties.62  The  supersedeas  may  be  in 
the  following  form: 


56  Code,  Sec.  4134;  Rules,  Sec.  35.  Whitehead  v.  Thorp,  22-425. 

Flynn  v.  Des  Moines  &  St.  L.  R.  59  Mitchell  v.  Goff,  18-424. 

Co.,  62-521.  eo  State  v.  Kirkpatrick,  54-373. 

5- 'Pratt   v.   Western   Stage   Co.,  ei  Code,  Sec.  4133;  Rules,  Sec.  34. 

26-241.  62  Code.  Sec.  4133;  Rules,  Sec.  34, 

ss  Field    v.     Schricher,     14-119; 


553  APPELLATE    PROCEEDINGS.  [§  1325. 

FORM  OF  SUPERSEDEAS. 

The  State  of  Iowa. 
To ,  greeting: 

Whereas has  appealed  from  the  judgment  (or  order,  identify- 
ing it)  of  the  district  court  of  county,  Iowa,  rendered  on  the 

day  of ,  18 — ,  in  an  action  then  pending  wherein was 

plaintiff  and  was  defendant;    and  whereas  the  said  has 

filed  in  my  office  this  day  a  supersedeas  bond  in  said  cause  with  sureties 
approved  by  me. 

Now,  therefore,  you  are  hereby  commanded  and  required  to  stay 
any  and  all  proceedings  in  said  cause  (or  on  the  part  superseded) 
from  and  after  the  date  hereof,  and  until  said  appeal  is  finally  disposed 
of  and  determined. 

Witness clerk  of  said  court,  with  the  seal  thereof  hereto  af- 
fixed, this day  of ,  18—. 

[Seal.]  ,  clerk,  etc. 

The  taking  of  an  appeal  from  a  part  of  a  judgment  or 
order  and  the  filing  the  bond  does  not  cause  a  stay  of  ex- 
ecution as  to  that  part  of  the  judgment  or  order  not  ap- 
pealed from.63  If  an  execution  has  issued  prior  to  the 
filing  of  the  bond  the  clerk  must  countermand  the  same.64 
Property  levied  on  and  not  sold  at  the  time  the  counter- 
mand is  received  by  the  sheriff  must  forthwith  be  deliv- 
ered to  the  judgment  debtor.65 

Such  countermand  may  be  in  the  following  form: 

FORM  OF  COUNTERMAND. 

The  State  of  Iowa. 
To ,  sheriff  of county,  Iowa. 

Whereas,  —       —  has  appealed  from  the  judgment  (or  order)  of  the 

district  court  in  and  for county,  Iowa,  rendered  on  the day 

of ,  18 — ,  in  an  action  then  pending  in  said  court  wherein 

was  plaintiff  and  —      —  was  defendant;    and  whereas,  on  the  —      —  day 

of ,  18 — ,  and  after  the  delivery  to  you  of  the  execution  issued  on 

said  judgment,  the  said filed  in  my  office  a  supersedeas  bond  in 

said  cause  with  sureties  approved  by  me. 

Now  you  are  hereby  commanded  to  forthwith  return  said  execution 
without  proceeding  further  thereunder. 

Witness,  etc.  (as  in  last  form). 

On  receipt  of  the  above  the  sheriff  should  return  the 

«3  Code,  Sec.  4129.  GO  Code,  Sec.  4131;  Swift  v.  Con- 

«*  Code,  Sec.  4130;  Rules,  Sec.  32.      boy,  12-444. 


§  1326.]  APPELLATE    PROCEEDINGS.  553 

execution,  stating  his  acts  done  under  it,  and  that  it  was 
countermanded. 

§  1326.  Who  may  appeal. — In  order  to  appeal,  one 
must  be  a  party  to  the  record.66  Nor  are  the  parties  for 
whose  benefit  an  action  is  brought  or  defended  parties 
in  such  a  sense  as  to  be  entitled  to  appeal.67  Nor  will  an 
appeal  lie  in  behalf  of  one  who  has  stayed  execution  on 
the  judgment.68  A  part  of  several  co-parties  may  ap- 
peal, but  in  such  case  they  must  serve  notice  of  the  ap- 
peal upon  those  not  joining  therein,  and  file  the  proof 
thereof  with  the  clerk  of  the  supreme  court.69  If  this 
notice  is  not  served  in  such  cases,  the  appellate  court 
will  dismiss  the  appeal.  The  co-parties,  on  being  served, 
may  elect  to  join  in  the  appeal,  in  which  case  they  are 
entitled  to  all  the  benefits  of  the  same,  and  may  file  an 
assignment  of  errors,  and  may  argue  the  case.70  Nor 
can  a  defendant  appealing  complain  of  errors  affecting 
only  his  co-defendant.71  The  co-defendant  who  is  noti- 
fied of  an  appeal  is  presumed  to  join  in  the  appeal,  unless 
he  refuses  so  to  do,  and  will  be  liable  for  his  due  propor- 
tion of  the  costs.72  And  co-parties  refusing  to  join  in 
the  appeal  can  not  afterward  appeal,  nor  can  they  derive 
any  benefit  from  the  appeal,  unless  from  the  necessity 
of  the  case.73  No  appeal  can  be  taken  by  a  deceased 
party.74  A  party  not  appealing  can  have  no  relief.75 

««  Borgalthous  v.  Farmers,  etc.,  Hawkeye  Ins.  Co.,  77-343;  Laprell 

36-250;  Ferguson  v.  Board,  etc.,  44-  v.  Janosh,  83-753;  Fisher  v.  Chaf- 

701;  State  v.  Jones  County  Judge,  fee,   64   N.  W.,   662;    Brundage  v. 

11-11;     Phillips   v.  Shelton,    6-545;  Chenoworth,  70  N.  W.,  211;  Ash  v. 

see  Webster  v.  C.,  R.  &  St.  P.  R.  Ash,    90-229;    Marshall   County  v. 

Co.,  27-315;  Yarish  v.  C.  R.,  I.  F.  Knoll,  69  N.  W.,  1146;  Epeneter  v. 

&  N.  W.  R.  Co.,  72-556.  Montgomery  County,  67  N.  W.,  93. 

eTCode,    Sec.    3464;    Fleming   v.  TO  Barlow    v.    Scott,    12-63;     see 

Mershon,    36-413;     Fuller    v.    Un-  Moore  v.  Held,  73-538. 

known,  etc.,  9-430;    see  White  v.  TI  Eyre  v.  Cook,  9-185. 

Hampton,  13-259;   In  re  Estate  of  «  Code,  Sec.  4112;  Rules,  Sec.  11. 

Bagger,  78-171.  73  Code,  Sec.  4112;  Rules,  Sec.  11; 

esWaterford  v.  Eads,  10-592.  Alexander    v.    Bufflngton,    66-360; 

69  Code,  Sec.  4111;  Rules,  Sees.  10,  Devoe  v.   Hall,   60-749;    Butter  v. 

11;  Hunt  v.  Hawley,  70-183;   Moore  Barkley,  67-491. 

v.  Held,  73-538;  Wright  v.Mahaffey,  T*  Tracy  v.  Roberts,  59-624. 

76-96;     Kellog    v.     Colby,    83-513;  TS  Huff     v.     Olmstead,      67-598; 

Soukup  v.  Union  Inv.  Co.,  84-448;  Lamb   v.  Council   Bluffs  Ins.  Co., 

Payne  v.  Ranbuisk,  82-587;  Day  v.  70-238. 


554  APPELLATE  PROCEEDINGS.  [§  1327. 

§  1327.  Of  the  certification  of  the  record,  when 
necessary,  and  how  obtained. — No  transcript  is  neces- 
sary in  the  absence  of  a  denial  of  the  abstract  or  of  a  cor- 
rection of  the  same  by  an  amended  abstract.  No  certifi- 
cation of  the  record  is  required  unless  ordered  by  the 
supreme  court  or  a  judge  thereof,  which  order  must  be 
made  upon  an  application  in  writing  or  by  motion,  des- 
ignating the  matters  and  things  of  record  desired  to  be 
included  therein,  and  showing  the  necessity  therefor. 
The  order,  if  granted,  must  contain  similar  designations 
and  show  the  parts  to  be  given  by  an  abstract  of  the  orig- 
inal record  and  the  portions  to  be  by  transcript,  and  may 
require  any  or  all  the  matters  to  be  presented  by  an 
amended  abstract.  The  application  and  order  made 
must  be  filed  in  the  office  of  the  clerk  of  the  supreme 
court,  who  must  transmit  the  order  to  the  clerk  of  the 
lower  court  and  send  a  notice  or  a  copy  thereof  to  the  ap- 
pellant or  to  his  attorney.  The  order  must  be  attached 
to  and  returned  with  the  record  certified,  and  be  submit- 
ted with  the  papers  in  the  case.  The  appellant,  upon  a 
notice  or  copy  of  the  order  being  received  by  him,  or  his 
attorney,  must,  within  five  days,  unless  otherwise  or- 
dered, pay  or  secure  to  the  satisfaction  of  the  clerk  of  the 
lower  court,  his  fees  and  expenses  for  preparing  and  for- 
warding the  record  ordered,  and  upon  failure  to  do  so, 
the  appeal,  upon  motion,  may  be  dismissed  or  the  judg- 
ment affirmed  as  the  appellee  may  elect.76  When  certifi- 
cation of  the  record  is  required,  the  designated  papers, 
notices,  depositions,  exhibits  identified  as  evidence,  no- 
tice of  appeal  with  return  or  acceptance  of  service 
thereon,  and  any  other  paper  filed  in  the  case,  or  any 
part  thereof,  may  be  transmitted  to  the  supreme  court  in 
the  original  form,  or  by  a  transcript  of  the  same,  except- 
ing that  the  short-hand  reporter's  translation  of  his  re- 

76  Code,  Sec.  4122;  Rules,  Sec.  23;  &  Frank  Co.  v.  Miller,  87-426;  Win- 

Simplot  v.  Dubuque,  49-630;    Van  ter  v.  Central  Iowa  R.  Co.,  80-443; 

Ormer  v.   Harley,  71  N.  W.,   241;  Taylor  v.  C.  M.  &  St.  P.  R.  Co.,  80- 

Hampton  v.  Moorehead,  62-91;  Aus-  431. 
tin  v.  Bremer  County,  44-155;  Goll 


§  1327.]  APPELLATE    PEOCEEDINGS.  555 

port  shall  be  transmitted  in  its  original  form,  but  all  en- 
tries of  record  must  be  certified  by  transcript.  The  clerk 
of  the  trial  court  must  verify  his  return  whether  it  be  of 
the  record  or  transcription  thereof  by  his  certificate, 
under  seal,  distinguishing  between  originals  and  tran- 
scripts, and  such  certification  so  made  will  constitute  a 
part  of  the  record  in  the  supreme  court.77 

FORM  OF  APPLICATION  FOR  AN  ORDER  OF  CERTIFICATION  OF 

THE  RECORD. 

In  the  Supreme  Court  of  Iowa, Term,  18 — . 

,  appellant,  )  Motion  for  an  order  of  cer- 


tification  of  the  record, 
appellee. 


To  the  Honorable  Supreme  Court  of  the  State  of  Iowa  (or  to , 

judge  of  the  supreme  court  of  the  State  of  Iowa). 

The  above  named  appellant  states  that  on  the  —    —  day  of , 

18 — ,  he  filed  with  the  clerk  of  this  court  a  full,  complete  and  correct 
abstract  of  record  in  this  case,  embracing  the  evidence  therein.  That  on 

the day  of ,  18 — ,  the  appellee  in  said  cause  served  u'pon 

this  appellant's  counsel,  an  amended  abstract  in  said  cause  alleging 
that  this  appellant's  abstract  was  unfair  and  setting  forth  therein  a 
large  amount  of  evidence  which  appellee  claims  was  offered  and  intro- 
duced on  the  trial  of  said  cause.  That  on  the day  of ,  18 — , 

appellant  filed  in  this  court  a  printed  denial  of  appellee's  amended  ab- 
stract alleging  therein  that  said  appellee's  amended  abstract  is  unfair 
and  untrue,  and  that  the  evidence  therein  set  forth  as  having  been  of- 
fered and  introduced  in  evidence  was  never  offered  or  introduced  in  evi- 
dence. 

Said  pretended  evidence  so  set  out  in  appellee's  amended  abstract 
would,  if  true,  be  very  material  in  the  determination  of  said  cause. 

Appellant  therefore  moves  the  court  for  an  order  for  tne  certifica- 
tion of  the  record  in  the  case  from  the  district  court,  the  said 

certification  to  embrace  the  following  matters  and  things  of  record  to 
wit:  (here  set  out  specifically  just  what  part  of  the  record  it  is  desired 
to  have  certified). 

Appellant  alleges  that  said  certification  of  the  record  is  necessary 
as  said  record  will  fully  sustain  appellant's  denial  of  appellee's  amended 
abstract. 

,  attorneys  for  appellant. 

Upon  examination    of  the   application   the  court   (or 
judge)  will,  if  a  proper  showing  is  made,  make  an  order 

™  Code,  Sec.  4123;  Rules,  Sec.  24;  3-207;  Blanchard  v.  Devoe,  80-521; 
Cox  v.  Macy,  76-316;  Pilkey  v.  McArthur  v.  Shultz,  78-364;  State 
Gleason,  1-85;  Conrad  v.  Baldwin,  v.  Hall,  79-674. 


556  APPELLATE    PROCEEDIXGS.  [§  1328. 

in  pursuance  of  rule  23,  which  may  be  endorsed  upon  the 
application,  and  may  be  in  the  following  form: 

FORM  OF  ORDER  FOR  CERTIFICATION  OF  THE  RECORD. 

On  examination  of  the  within  application  it  is  ordered  that  the 

clerk  of  the  district  court  of county,  Iowa,  certify  to  this  court 

(here  follow  with  a  specific  description  of  the  parts  of  the  record  de- 
sired to  be  certified  and  designate  what  part  shall  be  by  abstract  and 

what  by  a  transcript  of  the  original  record). 

,  chief  justice. 

(or ,  judge,  as  the  case  may  be.) 

§  1328.  Of  denials  of  the  transcript,  and  the  per- 
fection of  the  record. — A  transcript  may  be  denied; 
and  when  such  denial  is  made  it  must  be  as  specific  as 
the  case  will  permit.  The  trial  court,  the  supreme  court, 
or  a  judge  of  either  court,  may  make  any  orders  neces- 
sary to  secure  a  perfect  record  or  transcript  thereof,  upon 
a  showing  by  affidavit  or  otherwise  and  upon  such  no- 
tice as  the  court  or  judge  may  prescribe.78  The  decisions 
below  cited  were  made  under  the  old  statute  which  was 
much  different  from  the  present  law.  Under  the  prior 
law  it  was  held  that  matters  not  appearing  in  the  tran- 
script or  record  would  not  be  considered,  nor  could  they 
be  made  a  part  thereof  by  affidavits,  this  is  the  case  as  to 
improper  remarks  of  counsel,  and  misconduct  of  the 
jury;79  or  in  an  action  tried  by  ordinary  proceedings  by 
a  mere  certificate  of  the  clerk.80  Nor  can  the  record  or 

78  Code,  Sec.  4120;  Rules,  Sec.  26.  Faulks,  83-423;  Neitz  v.  Hilker,  84- 

7»  Bell   v.    Pierson,    Morris,    21;  459;   Underwood  v.  Lombard  Inv. 

Powell  v.  Spaulding,  3  G.  Gr.,  417;  Co.,  84-25;     Foster  v.  Hinson,  75- 

Perkins  v.   Testerment,   3  G.    Gr.,  291;  Short  v.  C.,  M.  &  St.  P.  R.  Co., 

207;  Pilkey  v.  Gleason,  1-85;  Mus-  79-73;  Jameson  v.  Weaver,  84-611; 

grave  v.  Brady,  Morris,  456;  Blan-  Garrettson  v.  Ferrall,  92-778;  Ruth 

chard  v.  Devoe,  80-521;   McArthur  v.  Zimbleman,  68  N.  W.,  895;  Siate 

v.  Shultz,  78-364;  State  v.  Hall,  79-  v.  Louderbeck,  65  N.  W.(  158;   El- 

674;     State    v.    demons,     78-123;  dridge  v.  Stewart,  66  N.  W.,  891; 

Knoebel  v.  Wilson,  92-536;    Little  State  v.  Helm,  66  N.  W.,  751. 
Sioux  Sav.  Bk.  v.  Freeman,  93-426;          so  Jordan  v.  Quick,  11-9;   Garber 

Nelson  v.  C.,  M.  &  St.  P.  R.  Co.,  v.  Morrison,  5-476;    State  v.  Jones 

77-405;   Rosenbaum  v.  Partch,  85-  County,  11-11;  Harmon  v.  Chand- 

409;  Pitts  v.  Lewis,  81-51;   Barber  ler,  3-150;    Daniels   v.    Gower,    54- 

v.  S«ott,  92-52;  Ford  v.  Easley,  88-  319;  Keller  v.  Killion,  9-329;   Pat- 

603;   State  v.  Black,  89-737;    Light  ter  v.  Wooster,  10-334;    Knight  v. 

v.  Chicago,  M.  &  St.  P.  R.  Co.,  93-  Kelly,  10-104;  Holmes  v.  Budd,  11- 

83;   State  v.  Kennedy,  77-208;  Cox  186;    McArthur  v.    Shultz,   78-S64; 

v.     Macy,     76-316;     Lookabill     v.  Barber    v.    Scott,    92-52;    Ford   v. 


§  1329.]  APPELLATE  PEOCEEDIXGS.  557 

the  recitals  in  a  bill  of  exceptions  be  contradicted  by  a 
certificate  of  the  judge.81 

The  bill  of  exceptions  in  an  action  tried  by  ordinary 
proceedings  should  be  brought  to  the  supreme  court  by 
copy,  but  an  error  in  that  respect  will  only  work  a  con- 
tinuance in  order  to  obtain  a  corrected  transcript.82  But 
a  bill  of  exceptions  not  embraced  in  the  record,  nor  prop- 
erly certified  as  a  part  of  it,  will  not  be  considered.83  No 
transcript  is  necessary  in  any  case  where  it  is  waived  by 
the  parties,  nor  unless  the  parties  in  their  abstracts  fail 
to  agree  as  to  the  record,  nor  unless  the  correctness  of 
appellant's  abstract  is  denied,  in  which  case  the  question 
in  controversy  must  be  determined  by  an  inspection  of 
the  transcript,  which  must  be  ordered  by  the  court  or 
some  judge  thereof.84  And  as  abstracts  are  required  in 
all  cases,  the  court  will  not  examine  a  transcript  where 
no  exceptions  are  taken  to  the  abstract.85  In  practice 
transcripts  are  not  often  required,  as  the  parties  usually 
agree  on  an  abstract  embodying  all  of  the  record  that 
they  wish  to  take  up.  As  to  what  is  a  part  of  the  record, 
and  when  a  bill  of  exceptions  is  necessary  reference  is 
made  to  the  chapter  on  exceptions  and  bills  of  excep- 
tions. 

§  1329.  Of  certifying  the  records  in  an  equity  case. 
—Papers  properly  certified  by  the  clerk  will  be  pre- 
sumed to  have  been  filed  in  the  case.88  If  the  evidence 
is  not  certified  or  identified  it  will  be  stricken  out  on  mo- 
tion.87 NOT  will  the  court  try  the  case  anew  where  the 
certificate  does  not  properly  identify  the  evidence.88  As 

Easley,  88-603;  State  v.  Black.  89-  ton  v.  Moorhead,  62-91;  Austin  v. 

737;  Neitz  v.  Hilker,  85-459;  Jame-  Bremer  County,   44-155. 

son  v.  Weaver,   84-611;    Corlis  v.  ss  Montgomery    County    v.    Am. 

Connable,  74-58.  Em.    Co.,    47-91;    Barnes    v.    Ind. 

«i  Pearson    v.    Maxfield,    47-135;  Dist,  51-700;   State  v.  Smouse,  49- 

Dedric  v.  Hopson,  62-562;    Connor  634;  Holmes  v.  Lucas  County,  53- 

v.     Long,     63-295;     McArthur     v.  211. 

Shultz,  78-364;  Cox  v.  Macy,  76-315.  ss  Mays  v.  Deaver,  1-216. 

82  Fernow  v.  D.  &  S.  R.  Co.,  22-  ST  Brackett    v.    Belknap,    41-592; 

528.  see  Shear  v.  Brinkman,  72-698. 

ss  State  v.   Leis,   11-416;    Wads-  ss  Wetherell  v.  Goodrich,  22-583; 

worth  v.  First  Nat'l  Bk.,  73-425.  Davenport  v.  Ells,  22-296;  Grant  v. 

s*  Rules,  Sees.  23,  24,  26;  Hamp-  Grant,  46-478;    Teague  v.  Fortsch, 


558  APPELLATE  PBOCEEDIXGS.  [§  1330. 

to  what  is  a  sufficient  certification.89  As  to  the  manner 
of  making  matters  of  record  and  especially  as  to  the  re- 
porter's notes  and  how  they  and  the  translation  of  them 
must  be  certified,  and  when  filed,  and  how  exhibits  must 
be  identified  therein  consult  the  following  cases,  also 
chapter  on  exceptions  and  bills  of  exceptions.90  The  cer- 
tificates referred  to  in  this  section  may  be  in  the  follow- 
ing forms: 

FORM  OF  CERTIFICATE  TO  DEPOSITIONS  WHEN  THE  ORIGINAL 

DEPOSITION  IS  SENT  UP. 
State  of  Iowa,    ) 
County,  f  S£ 

I, ,  clerk  of  the  district  court  of  the  State  of  Iowa  in  and  for 

said  county,  hereby  certify  that  the  within  (or  foregoing)  depositions 
being  the  original  depositions  filed  in  said  cause  (or  other  papers)  were 
(or  was)  read  in  evidence  on  the  part  of  the  plaintiff,  (or  defendant)  on 

the  trial  of  (give  title  of  cause)  before  said  court,  at  the  term 

thereof,  18—. 

[Seal.]  ,  clerk,  etc. 

FORM  OF  CERTIFICATE  TO  A  TRANSCRIPTION  OF  THE  RECORD 

IN  AN  EQUITY  CASE. 
State  of  Iowa, 


County,     f 8S> 


I, ,  clerk  of  the  district  court  of  the  State  of  Iowa,  in  and  for 

—  county,  hereby  certify,  that  the  foregoing  is  a  full,  true  and  per- 


fect transcript  of  the  record  in  the  above  entitled  cause,  as  fully  as  the 
same  remains  on  file  and  of  record  in  my  office;  and  I  further  certify 
that  the  transcript  of  the  depositions  and  papers  certified  by  me  as  hav- 
ing been  used  in  evidence  on  the  trial  of  said  cause,  marked  respectively, 
exhibits  A,  B,  C,  etc.,  constitutes  a  complete  transcript  of  all  the  evi- 
dence offered,  received  or  used  in  said  cause  on  the  trial  thereof  in  said 
court. 

Witness,  etc.  (as  in  preceding  form). 

§  1330.     Of   the  form  of  the  transcript. — When  a 
transcript  is  required  it  may  be  in  the  following  form : 

66  N.  W.,  1056;  Runge  v.  Hahn,  v.  Lowe,  40-220;  Richards  v. 

75-733.  Lounesbury,  65-587;  De  Long  v. 

ss  Ticonic  Bk.  v.  Harvey,  16-141:  Lee,  73-53;  Lutz  v.  Aylesworth,  66- 
Davenport  v.  Ells,  22-296;  Grant  v.  629;  Royer  v.  Foster,  62-321;  John- 
Grant,  46-478;  Cross  v.  B.  &  S.  W.  ston  v.  McPherran,  81-230;  Blan- 
R.  Co.,  58-62;  Chambers  v.  Ingham,  chard  v.  Devoe,  80-521;  Neitz  v. 
25-222;  Teague  v.  Fortsch,  66  N.  Helker,  85-743;  Hammond  v.  Wolf, 
W.,  1056;  Runge  v.  Hahn,  75-733  78-227;  Richardson  v.  Gray,  85- 

aoQaylord  v.  Taft,  53-756;  Lowe  149;  Fleming  v.  Stearns,  79-256. 


§  1330.]  APPELLATE    PKOCEEDLNGS. 

State  of  Iowa,         j 
County  of sa' 


In  the  district  (or  superior)  court  of  Iowa,  at  a  term  begun  and 

holden  in  the  county  of on  the day  of  —  — ,  A.  D.  18 — , 

before  J.  H.  G.,  judge  of  the  judicial  district  (or  judge  of  the 

—  (superior  court)  of  the  State  of  Iowa. 


..B.    i 

vs.      I 
.D.    f 


A.  B. 

vs. 
C 


Be  it  remembered  that  heretofore,  to  wit:    on  the  day  of 

— ,  A.  D.  18 — ,  a  petition  was  filed  in  the  office  of  the  clerk  of  the  dis- 


trict (or  superior)  court,  in  and  for  the  county  of in  words  and 

figures  following,  to  wit: 

(Here  insert  the  petition  in  full.) 

(Proceed  in  the  same  manner  in  relation  to  whatever  paper  is  filed, 
such  as  the  original  notice,  or  a  petition  for  attachment,  etc. 

If  the  cause  has  come  from  another  county  by  a  change  of  venue, 
begin  as  above:  "Be  it  remembered,"  and  state  in  like  manner  all  that 
was  done  in  the  county  from  which  the  venue  was  changed.) 

And  afterward  th'ere  was  filed  in  the  office  of  the  said  clerk  a  notice 
in  the  words  and  figures  following,  to  wit: 

(Here  insert  the  notice  in  full.) 

(Copy  all  indorsements  on  the  face  of  the  transcript,  or  copy  or 
record,  and  not  upon  the  back  of  the  leaf.) 

Upon  which  (or  attached  to  which)  was  a  return  as  fallows:  (Copy 
the  officer's  return,  with  all  indorsements  in  full;  if  the  suit  be  by  at- 
tachment, copy  the  petition  or  affidavit,  writ  or  attachment,  bond,  no- 
tice, return,  etc.) 

And  afterward,  to  wit:  on  the  day  of  ,  A.  D.  18 — , 

there  was  filed  in  the  office  of  the  said  clerk,  an  answer  in  words  and 
figures  following,  to  wit: 

(Here  insert  answer  in  full.) 

(Should  the  clerk  doubt  what  the  paper  is  let  him  call  it  a  "paper 
in  the  words  and  figures  following,"  etc. 

Where  a  paper  is  filed  in  term  time,  add  the  day  of  the  term  to  the 
day  of  the  month,  as  in  the  next  form. 

A.  B. 

vs. 

C.  D. 

And  afterward,  to  wit:  on  the  day  of  ,  A.  D.  18 — ,  it 

being  the day  of  the term  of  said  court,  the  said  A.  B.  (or 

plaintiff)  filed  the  following  demurrer  to  the  answer  of  the  said  C.  D. 
(or  of  the  said  defendant)  to  wit: 

(Here  insert  the  demurrer  in  full.) 

(If  a  party  files  more  than  one  pleading  at  the  same  time,  they 
should  be  numbered  in  their  legal  order,  as  for  instance  a  demurrer, 
and  answer,  and  the  transcript  may  say  (stating  the  date),  the 


560  APPELLATE    PROCEEDINGS.  [§  1330. 

said  C.  D.  (or  defendant)  filed  his  demurrer,  plea  and  answer,  which 
are  filed  subject  to  the  rule.) 


A.  B. 

vs 
C 


.  B. 
vs.      I 
.  D.    J 


And  now,  on  this day  of ,  A.  D.  18 — ,  it  being  the 


day  of  the  said  term  thereof,  this  cause  coming  on  for  hearing  on  the 
plaintiff's  demurrer  to  the  defendant's  answer,  (copy  the  entry  of  the 
proceedings  of  the  court,  sustaining  or  overruling  the  demurrer). 

And  afterward  on  the  day  of  the  said  ,  it  being  the 

day  of  the  said  term,  the  said  plaintiff  filed  his  reply  in  the  words 

and  figures  following,  to  wit: 

(Here  set  out  reply  in  full.) 

And  afterward  on  the  same  day  the  said  defendant  filed  motion  and 
affidavit  for  a  continuance,  as  follows,  to  wit: 

(Here  set  out  copy  of  motion  and  affidavit.) 

And  the  same  being  now  heard  and  considered  by  the  court,  the 
said  motion  is  sustained,  and  if  is  ordered  that  this  cause  be  continued 
until  the  next  term  of  the  court  (at  the  cost  of  the  defendant). 

In  the  district  (or  superior)  court, county. 


•B.    ) 

fs.       > 

.  D.    > 


A.  B. 
vs. 
C 


Term,  A.  D.  18—. 


And  now  on  this day  of ,  it  being  the day  of  said 

term,  this  cause  coming  on  for  trial,  came  a  jury,  to  wit: 


,  twelve  good  and  lawful  men,  who  were  sworn  well  and  truly  to 

try  the  issue  between  the  said  parties,  and  a  true  verdict  render,  accord- 
ing to  the  law  and  evidence  given  them  in  court.  The  jury  retired  to  con- 
sider on  their  verdict,  and  afterward,  on  the  same  day,  the  jury  returned 
into  court  and  rendered  its  verdict,  as  follows: 
(Here  insert  in  full  the  verdict  as  rendered.) 
(Or  if  the  jury  does  not  return  until  the  next  day.} 
A.  B. 


.  B.  > 

rs.      f 
.  D.   ' 


vs 
C 

And  afterward,  on  the day  of ,  A.  D.  18—,  the  Jury  in 

the  foregoing  cause  returned  into  court  and  rendered  its  verdict  as  fol- 
lows: 

(Here  insert  in  full  the  verdict  as  rendered.) 


..B.  1 

rs.      r 
.  D.    ' 


A.  B. 

vs, 
C 


And  afterward,  on  the day  of  ,  A.  D.  18 — ,  being  the 

—  day  of  said  term,  the  shorthand  reporter  filed  his  report  in  writ- 


ing, or  in  shorthand  (as  the  case  may  be)  certified  as  required  by  law, 
the  translation  of  which,  duly  certified,  was  filed  on  the day  of 


§  1331.]  APPELLATE  PROCEEDINGS.  561 

— ,  A.  D.  18—,  and  is  as  follows:  (Here  attach  the  original  transla- 
tion unless  otherwise  directed  by  order  of  the  supreme  court,  or  a  judge 
thereof.) 

A.  B. 

vs. 

C.  D. 

Now  on  this day  of ,  A.  D.  18—,  the  plaintiff  filed  his 

motion  for  a  new  trial,  to  wit: 

(Here  insert  in  full  the  motion  for  a  new  trial.) 

A.  B. 

vs. 

C.  D. 

And  now,  on  this day  of ,  A.  D.  18 — ,  this  cause  coming 

up  for  a  hearing  on  the  motion  of  the  plaintiff  for  a  new  trial,  it  is  con- 
sidered by  the  court,  that  the  same  be  overruled  (or,  as  the  case  may 
be). 

(Then  add  the  final  entries  of  record,  comprising  final  judgment, 
etc.,  and  certificate  of  clerk.) 

Note:  The  foregoing  form  is  only  an  example,  and  is  to  be  varied 
according  to  the  circumstances.  The  actual  facts  of  the  case  will  dic- 
tate what  is  to  be  done,  but  in  all  cases  it  is  to  be  done  substantially  in 
like  manner  with  the  above,  giving  the  proper  order  and  date  of  the 
filing  of  papers  and  incorporating  them  at  the  proper  date  into  the  pro- 
ceedings of  the  court. 

When  the  order  made  by  this  court,  or  a  judge  thereof, 
pursuant  to  rules  21,  22  and  23,  requires  but  a  part  of  the 
record  to  be  transcripted,  the  foregoing  form  should  be 
so  modified  as  that  it  will  include  only  those  matters  di- 
rected to  be  certified.  All  others,  except  the  mere  formal 
parts,  must  be  omitted. 

The  certificate  to  the  foregoing  transcript  may  be  as 
follows : 

FORM  OF  CERTIFICATE  TO  TRANSCRIPT. 
State  of  Iowa, 


County,     f  ss- 


I, ,  clerk  of  the  district  court  of  the  State  of  Iowa,  in  and  for 

county,  hereby  certify  that  the  foregoing  is  a  true  and  perfect 

transcript  of  the  record  in  the  above  entitled  cause  (or  so  much  thereof 
as  is  required  to  be  certified),  as  fully  as  the  same  remains  of  record  in 
my  office. 

In  witness  whereof,  etc. 

§   1331.     Of  correction  of  the  record,  etc. — Mistakes 
or  omissions  in  the  record,  if  any,  must  be  corrected  by 

Vol.  11—36 


562  APPELLATE    PROCEEDINGS.  [§  1332. 

proper  proceedings.  The  lower  court,  the  supreme  court, 
or  any  judge  of  either  court  may  make  necessary  orders 
to  secure  a  perfect  record  or  a  transcript  thereof,  upon  a 
proper  showing  and  on  such  notice  as  may  be  pre- 
scribed.1 And  the  written  evidence  in  an  equity  case 
being  lost  may  be  supplied  by  substitution.2  And  the 
court  below,  after  an  appeal  is  taken,  has  jurisdiction 
and  power  to  order  a  lost  record  substituted,  or  correct 
its  record  by  supplying  omissions,  or  to  do  any  other  act 
necessary  to  enable  the  appellate  court  to  review  the 
alleged  errors  of  the  trial  court.3  Evidence  may  be 
stricken  from  the  record  when  not  properly  certified.4 
If  the  record,  though  partial,  is  sufficient  to  clearly  show 
the  ruling  appealed  from,  the  question  raised  will  be  de- 
cided.5 Where  appellant's  counsel,  without  leave,  re- 
moved certain  exhibits  from  the  transcript  after  it  had 
been  used  by  the  court  below,  but  the  transcript  as  certi- 
fied appears  to  contain  all  of  such  exhibits,  and  no  appli- 
cation was  made  below  to  correct  the  record,  a  motion  to 
strike  out  the  evidence  because  of  the  alleged  mutilation 
of  the  record  will  be  denied.6 

§  1332.  Of  inspection  of  original  papers. — When  a 
view  of  an  original  paper  or  exhibit  in  an  action  may  be 
important  to  a  correct  decision  of  an  appeal,  the  court 
may  order  the  clerk  of  the  court  below  to  transmit  the 
same,  which  he  must  do  in  the  manner  provided  for  the 
transmission  of  certifications  of  the  record.7 


iMahaffy     v.     Mahaffy,     63-55;  *  Becker  v.  Becker,  50-139;  Maxon 

Brier  v.  C.,  B.  &  P.  R.  Co.,  66-602;  v.  C.,  M.  &  St.  P.  R.  Co.,  67-22C; 

Campbell  v.  Long,  20-382;  Stiles  v.  Buckwalter  v.  Craig,  24-215;   Tif- 

Botkin's  Estate,  30-60;  Dobbins  v.  fany  v.  Henderson,  57-490;  Goff  v. 

Lusch,  53-304;  Morris  v.  Steele,  62-  Hawkeye,     etc.,     62-691;     Eno     v. 

228;    Tomlinson  v.   Funston,   1   G.  Hunt,  8-436. 

Gr.,  544;  Tasker  v.  Marshall,  4-544;  *  Brackett    v.     Belknap,    40-704; 

Bartle     v.     Des     Moines,     37-635;  Alexander  v.  McGrew,  57-287. 

Hughes   v.   Stanley,   45-622;    Code,  e  Hall  v.  Smith,  15-584;  see  Balm 

Sec.  4093;  Rule,  Sec.  26;  Reynolds  v.  Nunn,  63-641. 

v.  Sutliff,  71-549;  De  Wolfe  v.  Tay-  e  van  Ormer  v  Harley  71  N  W 

lor,  71-648;  Code,  Sec.  4127.  241. 

2  L/oomis    v.    McKenzie,    48-416;  i  Code,   Sees.   4122,  4125;    Rules, 

Steiner  v.  Steiner,  49-70;    State  v.  Sec.  25;  Wing  v.  Stewart,  68-13. 
Dillard,   52-479;    Coffeen  v.   Ham- 
mond, 3  G.  Gr.,  241. 


§  1333.]  APPELLATE  PROCEEDINGS.  563 

§  1333.  Of  the  form  and  requisites  of  the  abstract. 
—All  causes  will  be  submitted  upon  abstracts  of  the  par- 
ties except  when  a  controversy  arises  as  to  the  record.8 
The  fact  that  the  paper  filed  and  intended  as  an  abstract 
is  not  so  entitled  or  designated  will  not  prevent  its  being 
so  considered.9  It  should  not  include  questions  and 
answers  without  regard  to  their  materiality.10  Nor 
should  writs,  services  and  other  writings  not  material 
to  the  case  be  set  out  in  it.11  But  it  should  show  the  fact 
of  service  of  the  notice  of  appeal,  and  it  must  show  the 
name  of  the  judge  presiding  at  the  trial.12  If  the  evi- 
dence is  not  abridged  in  the  abstract  as  required  by  the 
rules  of  the  supreme  court,  or  when  such  abstract  in- 
cludes matters  not  properly  a  part  of  the  record,  the 
costs  so  improperly  made  will  not  be  taxed  up  in  favor  of 
the  party  making  them  though  he  be  successful.13  At 
least  thirty  days  before  the  day  assigned  for  the  hearing 
of  a  cause,  the  appellant  must  serve  upon  the  attorney 
for  each  appellee  a  printed  copy  of  so  much  of  the  ab- 
stract of  the 'record  as  may  be  necessary  to  a  full  under- 
standing of  the  questions  presented  for  decision,  which 
must  be  prepared  as  required  by  rules  67,  68  and  69  of 
the  supreme  court.  He  must  also,  fifteen  days  before  the 
first  day  of  the  term  for  which  the  cause  is  to  be  docketed 
for  trial,  file  with  the  clerk  twelve  copies  of  said  ab- 
stract, and  no  cause  will  be  heard  until  thirty  days  after 
such  service  and  fifteen  days  after  such  filing  with  the 

s  Rules,  Sees.  20,  21,  22,  23,  24,  25,  Byam,  59-52;  Baldwin  v.  Foss,  71- 

26,  27,  28;  Code,  Sec.  4118.  389;  Jons  v.  Campbell,  84-557; 

»  Noble  v.  Des  Moines  &  St.  L.  R.  McDermott  v.  Iowa  Falls  &  S.  C. 

Co.,  61-637.  R.  Co.,  85-180;  Schneitman  v. 

10  Vaughn  v.  Smith,  58-553;  Too-  Noble,   75-120;    King  v.   Mahaska 
tie  v.  Taylor,  64-629.  County,  75-329;   Albrosky  v.  Iowa 

11  Tootle  v.  Taylor,  64-629.  City,  76-301;  Comes  v.  C.,  M.  &  St. 

12  Rules,  Sees.  66,  68,  117;  Phil-  P.  R.  Co.,  78-391;   Benton  County 
lips  v.  Follett,  69-39;    Kissinger  v.  Bk.   v.  Walker,   85-728;    Meyer  v. 
Council  Bluffs,  72-471.  Houck,  85-319;  Reed  v.  Lane,  65  N. 

is  Byerlee  v.  Mendel,  39-382;  Dye  W.,  380;  Boggs  v.  Douglass,  89-150; 
v.  Young,  55-433;  Poole  v.  Hintra-  Lindsay  v.  Carpenter,  90-529;  Mll- 
ger,  60-180;  Donahue  v.  McCosh,  more  v.  Hintz,  90-758;  Burke  v. 
70-733;  Chandler  v.  Freemont  Dillon,  92-557;  Gutherless  v.  Rio- 
County,  42-58;  Macomber  v.  Peck,  ley,  67  N.  W.,  109;  Fitzgerald  v. 
39-351;  Martin  v.  Cole,  38-699;  Nolan,  71  N.  W.,  224;  Rules,  Sec. 
York  v.  Clemens,  41-95;  Brown  v.  95;  Code,  Sees.  4118,  4120. 


564  APPELLATE    PBOCEEDINGS.  [§  1333. 

clerk,  unless  advanced  by  order  of  the  court;  nor  will 
the  cause  be  docketed  unless  this  and  other  rules  are 
complied  with.  In  case  of  cross-appeals,  the  party  first 
giving  notice  of  appeal  will  be  considered  the  appel- 
lant.1* If  it  appear  from  an  inspection  of  the  abstract 
that  the  appellant  has  negligently,  or  intentionally, 
failed  to  comply  with  the  rule  requiring  only  so  much  of 
the  record  as  may  be  necessary  to  a  full  understanding 
of  the  question  presented  for  decision  to  be  included 
therein,  the  court  may,  in  its  discretion,  order  a  new  ab- 
stract prepared  in  conformity  with  such  rule  or  affirm 
the  judgment  of  the  lower  court  without  considering  the 
appeal.15 

The  abstract  so  filed  will  be  presumed  to  contain  the 
record  unless  denied  or  corrected  by  a  subsequent  ab- 
stract. 

Every  denial  must  point  out  as  specifically  as  the  case 
will  permit  the  defects  alleged  to  exist  in  the  abstract. 
A  denial  by  the  appellee  will  be  taken  as  true  unless  the 
appellant  sustains  his  abstract  by  a  certification  of  the 
record.  Should  the  appellee  deem  the  appellant's  ab- 
stract incorrect  or  unfair,  he  may  prepare  such  addi- 
tional abstract  as  he  deems  necessary  to  a  full  under- 
standing of  the  questions  presented  to  the  court  for  de- 
cision. A  denial  of  the  appellant  of  such  additional  ab- 
stract, if  not  confessed,  will  be  disregarded  unless  sus- 
tained by  a  certification  of  the  record.  The  appellee 
must  serve  one  printed  copy  of  his  additional  abstract  or 
denial  on  each  appellant  or  his  attorney,  and  deliver 
twelve  printed  copies  thereof  to  the  clerk  within  ten  days 
after  receiving  the  appellant's  abstract,  and  a  denial  by 
the  appellant  must  be  served  on  the  appellee,  and  twelve 
printed  copies  thereof  delivered  to  the  clerk  within  five 
days  after  service  of  the  additional  abstract.18  Under 
prior  statutes  and  rules  it  was  held  that  a  failure 
to  file  an  abstract  or  argument  within  the  time  re- 

i*  Rule,  Sec.  20.  i«  Code,   Sees.  4118,   4120;    Rule, 

IB  Code,  Sec.  4118;  Rule,  Sec.  21.      Sec.  22. 


§  1333.]  APPELLATE  PKOCEEDINGS.  565 

quired  by  the  rules  would  not  be  ground  for  striking  it 
from  the  files  and  taxing  costs  to  such  failing  parly 
when  the  submission  of  the  cause  was  not  delayed 
thereby,  or  the  other  party  had  not  been  prejudiced.17 
An  abstract  and  argument  filed  after  the  submission  of 
the  case  on  a  transcript  of  the  record  will  not  be  consid- 
ered except  on  a  proper  showing.18 

All  abstracts,  denials  of  abstracts,  briefs,  arguments 
and  petitions  for  rehearing  must  be  printed  upon  un- 
ruled writing  paper,  with  type  commonly  known  as  small 
pica,  leaded  lines,  the  printed  page  to  be  four  inches 
wide  by  seven  inches  long,  with  a  margin  of  two  inches  ; 
but  the  type  in  which  extracts  are  printed  may  be  small 
pica  solid,  or  brevier  with  leaded  lines. 

The  first  page  of  the  abstract,  denial,  brief  or  argu- 
ment, must  show  the  title  of  the  cause,  designating  the 
appellant  and  the  appellee,  the  term  of  the  supreme 
court  to  which  the  appeal  is  brought,  the  court  from 
which  the  appeal  is  taken,  the  name  of  the  judge  who 
presided  at  the  trial,  and  the  names  of  the  attorneys  for 
both  the  appellant  and  appellee. 

The  abstract  must  be  accompanied  by  a  complete  in- 
dex of  its  contents.19 

Abstracts  of  record  must  be  made  substantially  in  the 
following  form: 

IN  THE  SUPREME  COURT  OF  IOWA, 

January  Term,  18  —  . 

John  Doe  appellant,          J     Appellant's  Abstract  of  Record. 
Richard  Roe,  appellee, 


J 

,   J 


("In  E*uii?"  or  "At  Law'"> 


17  Palo  Alto  County  v.  Harrison,  v.   Hutchinson,  88-320;     Boggs    v. 

68-81;    Doolittle    v.    Doolittle,    78-  Douglass,  89-150;   Doerr  v.  South- 

691;    Wilson    v.    Daniels,    79-132;  western  Mutual  L.  Ins.  Co.,  92-39; 

Spencer  v.  Moran,  80-374;  Lathrop  Croddy  v.  C.,  R.  I.  &  P.   R.   Co., 

v.    Doty,    82-272;    Thomas    v.    Me-  91-598;  Gregg  v.  Spencer,  65  N.  W., 

Donald,    77-126;     Scholl    v.    Brad-  411;   Taylor  v.  C.,  M.  &  St.  P.  R. 

street,  85-551;  Citizens  State  Bk.  v.  Co.,  80-431;  McDivitt  v.  Des  Moines 

Council    Bluffs    Fuel    Co.,    89-61S;  St.  Ry.  Co.,  68  N.  W.,  595. 

Aultman  &  Taylor  Co.  v.  Shelton,  is  State  v.   Windahl,   64   N.   W., 

90-288;    Briggs    v.    Coffin,    91-329;  420. 

Bowman  v  Western  Fur  Mfg.  Co.,  i»  State  v.  Abegglen,  69  N.  W., 

64    N.   W.,  775;    Foley    v.   Tipton  256. 
Hotel  Assn.,  71  N.  W.,  236:   Peck 


566  APPELLATE    PROCEEDINGS.  [§  1333. 

Appeal  from  VariBuren  District  Court. 
John  Smith,  Judge.20 

J.  C.  K.  for  the  appellant. 
H.  H.  S.  for  the  appellee. 

On  the  -  -  day  of  -  — ,  18—,  the  plaintiff  filed  in  the  Van- 
Buren  district  court  a 

PETITION 

stating  his  cause  of  action  as  follows: 

(Set  out  all  of  petition  necessary  to  an  understanding  of  the  ques- 
tions to  be  presented  to  this  court,  and  no  more.  In  setting  out  ex- 
hibits, omit  all  merely  formal  irrelevant  parts,  as,  for  example, — if  the 
exhibit  be  a  deed  or  mortgage  and  no  question  is  raised  as  to  the  ac- 
knowledgment, omit  the  acknowledgment.  When  the  defendant  has 
appeared  it  is  useless  to  encumber  the  record  with  the  original  notice 
or  the  return  of  the  officer.) 

On  the  —   —  day  of ,  A.  D.  18—,  the  defendant  filed  a 

DEMURRER 

to  said  petition  setting  up  the  following  grounds: 

(State  only  the  grounds  of  demurrer,  omitting  the  formal  parts.  If 
the  pleading  was  a  motion,  and  the  ruling  thereon  is  one  of  the  ques- 
tions to  be  considered,  set  it  out  in  the  same  way,  and  continue.) 

And  on  the day  of ,  18 — ,  the  same  was  submitted  to 

the  court,  and  the  court  made  the  following  rulings  thereon:  (Here  set 
out  the  ruling.) 

(In  every  instance  let  the  abstract  be  made  in  the  chronological 
order  of  the  events  in  the  case — let  each  ruling  appear  in  the  proper 
connection.  If  the  defendant  pleaded  over  and  thereby  waived  his  right 
to  appeal  from  these  rulings,  no  mention  of  them  should  be  made  in  the 
abstract,  but  it  should  continue.) 

And  on  the day  of ,  18 — ,  the  defendant  filed  his 

ANSWER 

to  the  petition,  setting  up  the  following  defenses: 

(Here  set  out  the  defenses,  omitting  all  formal  parts.  If  motions 
or  demurrers  were  interposed  to  this  pleading,  proceed  as  directed  with 
reference  to  the  petition.  Frame  the  record  so  that  it  will  properly 
present  all  questions  to  be  reviewed  and  raised  before  issue  is  joined. 
When  the  abstract  shows  issues  joined,  proceed.) 

BILL  OF  EXCEPTIONS. 

On  the day  of ,  18—,  said  cause  was  tried  to  a  jury  (or 

the  court,  as  the  case  may  be)  and  on  the  trial  the  following  proceedings 
were  had: 

sopitkin  v.  Peet,  64  N.  W.,  793. 


§  1333.]  APPELLATE    PROCEEDINGS.  567 

(Here  set  out  so  much  of  the  evidence  and  proceedings  as  is  neces- 
sary to  show  the  rulings  of  the  court  to  which  exceptions  were  taken 
during  the  progress  of  the  trial.) 

INSTRUCTIONS. 

After  the  evidence  and  the  arguments  of  counsel  were  concluded, 
the  plaintiff  (or  defendant,  as  the  case  may  be)  asked  the  court  to  give 
each  of  the  following  instructions  to  the  jury. 

(Set  out  the  instructions  referred  to,  and  continue.) 

Which  the  court  refused  as  to  each  instruction,  to  which  said  several 
rulings  the  plaintiff  (or  defendant)  excepted  at  the  time,  and  thereupon 
the  court  gave  the  following  instructions  to  the  jury: 

(Set  out  the  instructions.) 

To  the  giving  of  those  numbered  (give  the  number)  and  to  the  giv- 
ing of  each  thereof  the  plaintiff  (or  defendant)  at  the  time  excepted. 

VERDICT. 

On  the day  of ,  18 — ,  the  jury  returned  into  court  with 

the  following  verdict: 
(Set  out  the  verdict.) 

MOTION  FOR  NEW  TRIAL. 

On  the day  of ,  18 — ,  the  plaintiff  (or  defendant)  filed 

a  motion  praying  the  court  to  set  aside  the  verdict  and  grant  a  new 
trial  upon  the  following  grounds: 

(Set  out  the  grounds  aforesaid  for  the  new  trial.) 

On  the  day  of  ,  18 — ,  the  court  made  the  following 

ruling  upon  said  motion: 

(Set  out  the  record  of  the  ruling.) 

JUDGMENT. 

On  the  day  of ,  18 — ,  the  following  judgment  was  en- 
tered: 

(Set  out  the  judgment  entry  appealed  from.) 

On  the day  of  —  — ,  18 — ,  the  plaintiff  perfected  an  appeal  to 

the  supreme  court  of  the  State  of  Iowa,  by  serving  upon  the  defendant 
and  the  clerk  of  the  district  court  of  Van  Buren  county  a  notice  of 
appeal. 

(If  supersedeas  bond  was  filed,  state  the  fact.) 

ASSIGNMENT  OF  ERRORS. 

And  the  appellant  herein  says  there  is  manifest  error  on  the  face  of 
the  record  in  this: 

(Set  out  the  errors  assigned.) 21 

21  Rules,  Sees.  66,  67,  68. 


568  APPELLATE  PBOCEEDIXQS.     [§§  1334,  1335. 

This  outline  is  presented  for  the  purpose  of  indicating 
the  character  of  the  abstract  contemplated  by  the  rule, 
which,  like  all  the  rules,  is  to  be  substantially  complied 
with.  Of  course  no  formula  can  be  laid  down  applicable 
to  all  cases.  The  rule  to  be  observed  in  abstracting  a 
case  is:  Preserve  everything  material  to  the  questions 
to  be  decided,  and  omit  everything  else. 

The  opinion  of  the  trial  judge  is  a  proper,  though  not 
an  essential  part  of  the  record  on  appeal.22 

§  1334.  Of  the  construction  and  modification  of 
rules. —  When,  by  reason  of  peculiar  circumstances,  the 
foregoing  rules  relating  to  the  abstract,  preparation,  and 
argument  of  causes,  ought  to  be  waived  or  modified  in 
any  case,  the  party  desiring  such  waiver  or  modification 
may,  upon  reasonable  notice  to  the  adverse  party,  apply 
to  any  judge  of  this  court  in  vacation,  or  to  the  court  in 
term  time,  for  an  order  directing  the  waiver  or  modifica- 
tion desired.  The  application  must  be  in  writing,  and 
set  out  the  peculiar  facts  relied  upon  by  the  applicant, 
and  be  verified  by  the  party,  or  a  person  having  knowl- 
edge of  the  facts,  and  certified  by  counsel  as  being  true 
and  made  in  good  faith.  The  order  upon  such  applica- 
tion must  be  in  writing,  and  be  filed  with  the  clerk  of  this 
court 

In  no  case  will  the  rules  be  waived  or  modified  upon 
agreement  of  counsel  alone.23 

§  1335.  When  the  appeal  will  be  dismissed  or  the 
judgment  affirmed. —  If  an  abstract  of  the  record  is 
not  filed  by  appellant  thirty  days  before  the  second  term 
after  the  appeal  was  taken,  unless  further  time  is  given 
by  the  court,  or  a  judge  thereof,  for  cause  shown,  the  ap- 
pellee may  file  an  abstract  of  such  matters  of  record  as 
are  necessary,  or  may  file  a  copy  of  the  final  judgment  or 
order  appealed  from,  notice  of  appeal  and  return  of  ser- 
vice thereof,  certified  by  the  clerk  of  the  trial  court,  and 

22  Gregg  v.  Spencer,  65  N.  W.,  63  N.  W.,  665;  McLean  v.  Ficke,  62 
411;  Mellerup  v.  Travelers  Ins.  Co.,  N.  W.,  753. 

23  Rules,  Sec.  90. 


§  1335.]  APPELLATE  PEOCEEDIXGS.  569 

cause  the  case  to  be  docketed,  and  the  appeal  upon  mo- 
tion will  be  dismissed,  or  the  judgment  or  order  af- 
firmed.24 If  errors  are  not  assigned  and  filed  with  the 
clerk  of  the  supreme  court, and  a  copy  of  the  same  served 
on  the  appellee  or  his  attorney  ten  days  before  the  first 
day  of  the  trial  term,  the  appellee  may  have  the  appeal 
dismissed  or  the  judgment  or  order  affirmed,  unless  good 
cause  for  such  failure  is  shown.25  Under  the  code  of 
1873  it  was  provided  that  no  appeal  will  be  dismissed  or 
the  judgment  of  the  court  below  affirmed,  because  the 
cause  was  not  docketed,  or  transcript  or  abstract  filed, 
if  it  is  made  to  appear  that  the  appeal  was  taken  in  good 
faith  and  not  for  delay,  or  if,  from  the  conduct  of  the  ap- 
pellee or  his  counsel,  appellant  was  induced  to  believe 
that  no  motion  to  dismiss  or  affirm  would  be  made.28 
This  provision  is  not  retained  in  the  present  code. 
The  objection  that  appellant  has  not  filed  a  transcript 
must  be  raised  by  motion,  and  not  after  submission  upon 
argument.27  Where  there  is  an  issue  as  to  the  suf- 
ficiency of  the  abstract  the  burden  is  on  appellant 
to  produce  a  transcript  of  the  record,  and  if  he  fails 
to  do  so,  the  appeal  will  be  dismissed.28  Under  prior 
statutes  it  was  held  that  if  the  appellee  is  served 
with  the  abstract  and  does  not  then  or  within  a 
reasonable  time  thereafter  indicate  to  appellant  that 
he  desires  a  transcript,  but  insists  thereon  at  the 
term  when  the  cause  is  to  be  submitted  by  filing  a 
motion  to  dismiss  or  affirm,  time  will  be  given  the  ap- 
pellant to  procure  a  transcript,  and  a  continuance,  if 
necessary,  will  be  granted  for  that  purpose.29  And  that 
an  appeal  would  not  be  dismissed  on  motion  for  failure 
to  file  a  transcript,  but  the  court  would  order  it  filed,  and 

24  Code,  Sec.  4120;  Rules,  Sec.  28.  Rules,  No.  21;  Engleken  v.  Schultz, 

as  Code,    Sec.    4237;    Rules,    37;  40-703. 

Engleken  v.  Schultz,  40-703;   Con-  27  Simplot    v.    Dubuque,    4y-630; 

nor  v.  Long,  63-295;   Ind.  Dist.  v.  Holmes  v.  Hull,  48-177. 

Ind.  Dist.,  48-206;    Betts  v.  Glen-  as  Cord  v.  Barry,  71  N.  W.,  228; 

wood,  52-124;   Wise  v.  Ury,  72-74;  Pratt  v.  Pratt,  69  N.  W.,  1128. 

Exchange  Bk.  v.  Pottorfe,  65  N.  W.,  20  White  v.  Savery,  49-197;  Artz 

312;  Smith  v.  Hill,  83-684.  v.  Culbertson,  71-366. 

ze  Code  of   1873,   Sec.   4412;    old 


570  APPELLATE    PROCEEDINGS.  [§  1335. 

I 

continue  the  case  until  it  could  be  done.30  The  motion  to 
dismiss  the  appeal  may  be  overruled  pro  forma  in  order 
that  it  may  be  left  for  determination  in  the  final  submis- 
sion of  the  cause,  and  such  action  will  not  prevent  its 
consideration  at  that  time.31  And  an  appeal  may  be  dis- 
missed when  it  appears  that  appellant  is  no  longer  en- 
titled to  prosecute  it.32  So  it  may  be  dismissed  when  no 
judgment  was  rendered  in  the  court  below.33  But  a 
cause  will  not  be  affirmed  or  dismissed  on  motion  on  the 
ground  that  the  case  is  not  triable  de  novo,  and  there  is 
no  assignment  of  errors,34  nor  because  it  is  claimed  that 
the  record  does  not  sustain  the  errors  assigned.35  If, 
pending  an  appeal  in  a  divorce  case,  one  of  the  parties 
dies,  the  action  abates.36  A  second  motion  to  dismiss 
an  appeal  may  be  made  upon  a  new  and  more  perfect 
record.37  An  appeal  may  be  dismissed  by  the  State 
when  it  does  not  appear  that  it  will  prejudice  the  rights 
of  the  appellee.38  But  it  would  seem  that  an  appeal 
could  only  be  dismissed  by  the  real  party  interested.39 
The  supreme  court  may  order  a  judgment  of  the  lower 
court  affirmed  without  prejudice.40  When  the  supreme 
court  can  not  determine  from  the  pleadings  what  the 
issues  are,  they  may  remand  the  cause  so  that  the  par- 
ties may  plead  further.41  An  appeal  may  be  dismissed 
if  an  appellant  fails  to  pay  or  secure  the  clerk's  fees  for  a 
certification  of  the  record.42  The  cases  below  referred  to 
were  decided  under  the  old  statute.  Under  prior  law 
the  appeal  was  not  perfected  until  the  fees  for  a  tran- 

30  Manson  v.  Ware,  63-345;  Aid-  as  Martin  v.  State  F.  Ins.  Co.,  58- 

rich  v.  Price,  57-151.  609;   Warder  v.  Schwartz,  65-170; 

si  Green  v.  Rouen,  62-89.  Beiter  v.  Shadle,  70  N.  W.,  722. 

32  Ind.  Dist.  v.  Dist.  Twp.,  44-201;  34  White  v.  Savery,  49-197. 

Stanley     v.      Davenport,      54-463;  as  Balm  v.  Nunn,  63-641. 

Simonson  v.  C.,  R.  I.  &  P.  R.  Co.,  se  Barney  v.  Barney,  14-189. 

48-19;     Faucher  v.  Grass,    60-505;  37  Seacrest  v.  Newman,  19-323. 

Gresham  v.  Chantry,  69-728;  Long  ss  state  v.  Moriarty,  20-595. 

v.   Smith,   67-22;    Code,   Sec.   4151;  39  state  v.   Cavers,   22-343;      see 

Rules,   Sec.  30;   Root  v.  Heil,   78-  Marshall  County  v.  Knoll,   69   N. 

436;  Price  v.  Baldaref,  90-205;  West  W.,  1146. 

v.   Fitzgerald,   72-306;    Trulock   v.  40  White    v.     Poorman,     24-108; 

Friendship   Lodge,   K.   P.,   75-381;  Van  Orman  v.  Spafford,  20-215. 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Dey,  41  Lyon  v.  Tevis,  8-79. 

76-278.  42  Loomis    v.    McKenzie,   57-77; 

Fairburn  v.  Goldsmith,  56-347. 


§  1336.J  APPELLATE  PBOCEEDINGS.  571 

script  were  paid  or  secured.42  But  the  fees  need  not  be 
paid  until  a  transcript  was  required.43  And  no  time  was 
fixed  by  statute  within  which  such  fees  must  be  paid.44 
§  1336.  When  the  abstract  will  be  deemed  true. 
—The  abstract  filed  by  the  appellant,  if  no  denial  or  ad- 
ditional abstract  is  filed  by  the  appellee,  will  constitute 
the  record  and  be  regarded  as  a  verity.  It  takes  the 
place  of  the  transcript  and  can  not  be  impeached  or  con- 
tradicted in  any  other  manner  or  to  any  greater  extent 
than  the  transcript.45  Nor  can  it  be  impeached  by  state- 
ments of  counsel.46  Nor  can  the  abstract  be  impeached 
by  a  certificate  of  the  clerk  or  judge,  nor  by  affidavits, 
nor  by  a  denial  in  an  argument  only.47  And  when  an  ab- 
stract purports  to  contain  a  copy  of  a  paper  which  is  a 
part  of  the  record,  it  will  be  presumed  that  the  whole 
paper  is  set  out,  unless  the  contrary  is  shown.48  And 
when  appellant's  abstract  states  that  an  exception  was 
taken,  and  it  is  not  denied  in  an  amended  abstract,  it 
will  be  presumed  it  was  taken  as  stated.49  If  an  abstract 
claims  to  be  an  abstract  of  all  of  the  evidence  and  that 
statement  is  denied  in  appellee's  abstract,  the  statement 
of  appellee  will  be  deemed  true  in  the  absence  of  a  de- 
nial by  the  appellant.50  If  the  appellee  files  an  amended 

42  Code,  Sec.  4122;  Rules,  Sec.  29;  211;    Kunz  v.    Young,    66   N.    W., 

Day  v.  Hawkeye  Ins.  Co.,  72-597;  879;  McFarland  v.  City  of  Musca- 

Fitzgerald  v.  Kelso,  71-731;    State  tine,  67  N.  W.,  233. 

v.  Rogers,  71-753;   Moore  v.  Held,  *»  Baird  v.  C.,  R.  I.  &  P.  R.  Co., 

73-538;  Loomis  v.  McKenzie,  57-77;  61-359. 

Fairburn     v.     Goldsmith,     56-347;  *»  Palmer  v.  Rogers,  70-381. 

Slone  v.  Berlin,  88-205;   Bruner  v.  BO  Kearney   v.    Ferguson,    50-72; 

Wade,  85-666;   Searles  v.  Lux,  86-  Rules,  Sec.  22;   State  v.  Seery,   64 

61;  Peterson  v.  Hays,  85-14.  N.  W.,  631;  Jamison  v.  Weaver,  87- 

«  Slone  v.  Berlin,  88-205.  72;     Love    v.    Donaldson,    63-631; 

44  Bruner  v.  Wade,  85-666.  Wilmering  v.  Western  Union  Tel. 

48  Code,    Sec.    4118;    Rules,    Sec.  Co.,  63  N.  W.,  677;  Hopkins  v.  C., 

22;  White  v.  Savery,  49-197;  Kear-  R.  I.  &  P.  R.  Co.,  64  N.  W.,  603; 

ney  v.  Ferguson,  50-72;    Hardy  v.  Clark  v.  Tracy,  68  N.  W.,  435;  Hart 

Moore,  62-65;  Eldridge  v.  Bell,  64-  v.  Jackson,  57-75;  Ham  v.  Wiscon- 

125;  State  v.  Seery,  64  N.  W.,  631;  sin  I.  &  N.  R.  Co.,  61-716;   Lucas 

Jamison  v.  Weaver,  87-72.  v.  Jones,  44-298;  Daniels  v.  Lang- 

46  Farmer    v.     Sasseen,    63-110;  don,  52-741;  Cole  v.  Croskery,  63- 
Weaver  v.  Kintzley,  58-191;    Ken-  526;  Maxwell  v.  La  Brune,  68-689; 
drick  v.   Eggleston,    56-128;     Van  Brooks  v.  C.,  M.  &  St.  P.  R.  Co., 
Winkle  v.  Iowa,  etc.,  56-245;  Ran-  73-179;  Richardson  v.  Hoyt,  60-68; 
kin  v.  Miller,  43-11.  Burkhart  v.  Ball,  59-629;   Kearney 

47  Holmes  v.  Lucas  County,  53-  v.  Ferguson,  50-72;   Foley  v.  Hef- 


572  APPELLATE  PEOCEEDIXGS.  [§  1336. 

abstract  and  the  matters  therein  stated  are  not  denied, 
they  will  be  taken  as  true,  and  a  denial,  not  confessed, 
will  be  disregarded  if  not  sustained  by  a  certification 
of  the  record.51  But  if  appellant  files  a  further  ab- 
stract denying  such  matters  with  a  certification  of  the 
record  to  sustain  his  original  abstract  the  court  will  re- 
sort to  the  transcript  to  ascertain  the  facts.52  By  filing 
an  additional  abstract  purporting  to  supply  omissions 
in  the  original  abstract,  the  party  admits  that  the  two 
abstracts  contain  all  the  evidence  given  on  the  trial, 
unless  he  also  denies  that  the  two  abstracts  contain  all 
the  evidence.53  And  this  is  true,  though  the  original  ab- 
stract does  not  state  that  it  contains  all  the  evidence, 
if  the  appellee  files  an  amended  abstract,  setting  out  evi- 
dence alleged  to  have  been  omitted  from  the  original, 
unless  he  states  that  with  the  additions  made  by  him  the 
abstracts  do  not  contain  all  of  the  evidence.54  If  the  ap- 
pellee contends  that  the  two  abstracts  do  not  contain  all 
of  the  evidence,  such  statement  will  be  deemed  true  in 
the  absence  of  a  denial,  or  amended  abstract  accompanied 
or  sustained  by  a  certification  of  the  record  by  the  ap- 
pellant.55 If  the  abstract  of  the  appellant  does  not  pur- 

feron,  70-572;  Cleveland  v.  Atkin-  Bluffs,    62   N.   W.,   675;    Smith  v. 

son,  63  N.  W.,  465;     Capitol  City  Allen,  70  N.  W.,  694. 

State  Bk.  v.  Hammer,  70  N.  W.,  52  White  v.  Savery,  49-197;  Ztm- 

89;  Avery  Planter  Co.  v.  Martz,  65  merman  v.  Merchants  &  Bankers 

N.  W.,  989;   Deere  v.  Allen,  64  N.  Ins.  Co.,  77-350. 

W.,  682;  State  v.  Seery,  64  N.  W.,  53  Wells  v.  B.,  C.  R.  &  N.  R.  Co., 

631.  66-520;  Wilson  v.  Palo  Alto  Coun- 

51  Shattuck    v.    Burlington   Ins.  ty,  65-18;  see  Cross  v.  B.  &  S.  W. 

Co.,  78-377;  Furenes  v.  Severtson,  R.  Co.,  51-683;  Connors  v.  Burling- 

66  N.  W.,  918;   Kunz  v.  Young,  66  ton  C.  R.  &  N.  R.  Co.,  74-383;  In  re 

N.  W.,  879;  Knight  v.  C.,  R.  I.  &  P.  Estate  of  Bagger,  78-171. 

R.  Co.,  81-310;  Cox  v.  Mason  City  si  Van  Sandt  v.  Cramer,  60-424; 

&  Ft.  D.  R.  Co.,  77-20;  Crawford  v.  Starr  v.  Burlington,  45-87;  Fergu- 

Berryhill,  66  N.  W.,  876;    Riegle-  son  v.  Davis  County,  51-220;  Cum- 

man  v.  Todd,  77-696;  Brooke  v.  C.,  mings  v.  Browne,  61-385;   Balm  v. 

R.  I.  &  P.  R.  Co.,  81-504;  Harper  v.  Nunn,    63-641;    O'Brien   v.    Harri- 

Gleyslein,     85-709;      Harrison     v.  son,   59-686. 

Snair,  76-558;  Prescott  v.  Riverside  55  Love     v.    Donaldson,     63-631; 

Park  R.  Co.,  68  N.  W.,  831;   Pio-  Brainard     v.      Simmons,     58-464; 

neer  Impt.  Co.  v.  Sterling  Mfg.  Co.,  Rules,  Sec.  22;  Wilmering  v.  West- 

71   N.   W.,   409;    Hiatt   v.    Nelson,  ern  Union  Tel.  Co.,  63  N.  W.,  677; 

69  N.  W.,  553;  Bowman  v.  Western  Hopkins  v.  C.,  R.  I.  &  P.  R.  Co., 

Fur  Mfg.  Co.,  64  N.  W.,  775;  Dun-  64  N.  W.,  603;   Clark  v.  Tracy,  68 

gan   v.   Railway,   64    N.    W.,    762;  N.  W.,  435;  Barber  v.  Scott,  92-62; 

Hendricks     v.     City     of     Council  Hoffman  v.  Fritz,  91-733. 


§§  1337,  1338.]     APPELLATE  PEOCEEDINGS.  573 

port  to  contain  all  of  the  evidence,  appellee  may  set 
forth  in  an  amended  abstract  other  portions  of  the  evi- 
dence with  a  denial  that  both  abstracts  contain  all  of 
the  evidence,  and  such  denial  will  be  taken  as  true  in  the 
absence  of  anything  further  from  the  appellant.56  And 
generally  it  may  be  said  that  unless  an  additional  or 
amended  abstract  is  denied  or  amended  and  said  denial 
or  amendment  sustained  by  a  certification  of  the  record, 
it  will  be  presumed  to  present  the  record  correctly,  and 
will  prevail  against  the  original  abstract,  even  though  it 
seeks  to  eliminate  something  from  the  appellant's  ab- 
stract57 

§  1337.  When  the  abstract  may  be  attacked  by 
motion. —  If  the  abstract  sets  out  evidence  not  in  the 
record  it  may  be  stricken  therefrom  on  motion  of  the  ap- 
pellee.58 And  where  the  evidence  is  thus  stricken  out 
from  the  transcript  and  abstract,  and  a  perfect  tran- 
script is  afterward  filed  but  no  new  abstract,  the  court 
will  only  consider  the  original  abstract  as  it  is  left  after 
the  evidence  is  stricken  out.59  But  the  court  will  not 
take  a  statement  of  the  appellee  in  his  abstract,  that  no 
bill  of  exceptions  was  filed,  to  be  true,  and  on  his  mo- 
tion strike  out  the  evidence  without  referring  to  the 
transcript  to  determine  the  truth  of  the  allegation.60  But 
it  seems  it  may  do  so  if  appellee's  statement  is  not  de- 
nied or  avoided  by  the  appellant.61 

§  1338.  Of  the  filing  and  service  of  amended  and 
additional  abstracts.—  We  have  already  referred  to 
the  provisions  of  the  statute  and  rules  of  court  pro- 
viding for  the  filing  and  service  of  abstracts  and 
amended  abstracts.  An  amended  abstract  served  thirty 
days  before  the  case  is  submitted,  will  not  be  stricken 

so  Cartwright  v.  Copess,  60-195;  526;  Maxwell  v.  La  Brune,  68-689; 

Hall   v.    Harris,    61-500;    Howe    v.  Richardson  v.  Hoyt,  60-68;   Burk- 

Jones,  66-156;   Hassett  v.  Hassett,  hart   v.   Ball,    59-629;    Kearney   v. 

i-304:   Alexander  v.  McGrew,  57-  Ferguson,  50-72;  Rules,  Sec.  22. 

287;  Hunter  v.  Des  Moines,  74-215.  ss  Mudge  v.  Agnew,  56-297. 

'>'  Hart  v.  Jackson,  57-75;    Ham  59  Weider  v.  Overton,  47-538. 

v.  W.  I.  &  N.  R.  Co.,  61-716;  Lucas  eo  Wilson  v.  First  Presb.  Ch.,  oO- 

v.  Jones,  44-298;   Daniels  v.  Lang-  112. 

don,  52-741;   Cole  v.  Croskery,  63-  ei  Armstrong  v.  Killen,  70-51. 


574  APPELLATE  PKOCEEDIXGS.  [§  loot). 

from  the  files  because  not  served  within  the  time  fixed 
by  the  rules  when  no  prejudice  resulted  from  the  delay.62 
And  it  has  been  held  that  an  additional  abstract  filed  by 
the  appellant  three  months  before  the  case  was  submit- 
ted, but  after  the  filing  of  appellee's  abstract,  might, 
under  the  circumstances,  be  considered.63  Nor  will  an 
amended  abstract  be  stricken  out  because  filed  without 
leave  or  notice,64  if  the  submission  of  the  case  is  not 
thereby  delayed.65  An  amendment  can  not  be  filed  long 
after  the  case  has  been  fully  submitted.66  An  amend- 
ment to  appellant's  abstract,  rendered  necessary  by  rea- 
son of  a  motion  in  the  court  below,  after  the  record  was 
made  up,  will  not  be  stricken  from  the  files  because  it 
was  not  served  on  the  appellee.67 

A  party  may  be  allowed  to  amend  his  abstract  when 
the  original  does  not  fully  present  his  case;  but  it  should 
be  done  before  the  case  is  submitted,  and,  if  application  is 
made  for  leave  to  do  so  after  the  submission  of  the  cause, 
it  must  be  accompanied  by  a  motion  to  set  aside  the  sub- 
mission.68 Nor  can  the  appellant  file  an  additional  ab- 
stract with  his  argument  in  reply  except  to  controvert 
the  correctness  of  appellee's  additional  abstract.69  An 
amendment  of  appellant's  abstract  filed  without  leave 
after  appellee's  argument  is  filed,  may  be  stricken  out 
on  motion.70  Where  a  motion  was  submitted  with  the 
case  to  strike  out  an  amended  abstract  and  argument 
because  not  filed  within  the  time  agreed  upon  by  the 
parties,  and  the  motion  was  overruled;  no  costs  were 
taxed  to  the  unsuccessful  party  for  printing  such  ab- 
stract and  argument.71  And  generally  as  to  the  right  to 

ea  Green  v.  Rouen,  62-89;  see  N.  W.,  419;  State  v.  Windahl,  64 

Davidson  v.  Carter,  55-117.  N.  W.,  420. 

63  Palo  Alto  County  v.  Harrison,  67  Peterson  v.  Adamson,  67-739. 

68-81.  es  Wells  v.  B.,  C.  R.  &  N.  R.  Co., 

6*  Frost  v.  Parker,  65-178;  Harl  56-520;  State  v.  Hamilton,  57-596; 

v.  Pottawattamie  County  Mut.  F.  and  see  Fletcher  v.  Terrell,  50-267; 

Ins.  Co.,  74-39.  Rogers  v.  Carman,  54-715. 

es  Cason  v.  Ottumwa,  71  N.  W.,  6»  Johnson  v.  C.,  R.  I.  &  P.  R. 

192.  Co.,  51-25. 

es  Hopper  v.  C.,  M.  &  St.  P.  R.  TO  in  re  Caywood's  Will,  56-301. 

Co.,  91-639;  State  v.  Thompson,  64  ?i  Keegan  v.  Malone's  Estate,  62- 

208. 


§  1339.] 


APPELLATE    PROCEEDINGS. 


575 


amend  an  abstract.     And  when  costs  will  be  allowed 
therefor  and  taxed.72 

§  1339.  When  the  abstract  must  contain  all  the 
evidence  or  all  of  the  instructions. — The  court  will  not 
take  the  abstractor's  statement  of  a  fact  when  it  does 
not  appear  of  record.78  There  are  some  cases  where  the 
abstract  must  contain  all  of  the  evidence  introduced  on 
the  trial  in  the  lower  court.  Such  is  the  case  when  it  is 
sought  to  have  reviewed  a  finding  of  facts  made  by  a 
court,  jury  or  referee.74  And  when  it  is  claimed  that  the 
judgment  is  against  the  evidence.75  And  wThen  it  is 
claimed  that  the  damages  are  excessive.76  And  when  it 
is  claimed  that  the  instructions  are  not  applicable  to  the 
evidence.77  And  when  it  is  contended  that  the  verdict 
is  contrary  to  the  evidence  or  instructions.78  And  in  all 
equity  cases  triable  de  novo  in  the  supreme  court  the 
abstract  must  state  that  it  contains  all  the  evidence 
offered  or  received.79  And  if  it  is  claimed  that  the  in- 


72  Bowman  v.  Western  Fur  Co., 
64  N.  W.,  775;    Groneweg  v.  Kus- 
worm,  75-237;  Fitzgerald  v.  Nolan, 
71  N.  W.,  224;  Gutherless  v.  Ripley, 
67  N.  W.,  109. 

73  Dickerman  v.  Lubiens,  70-345; 
Anderson  v.  Leaverich,  70-741. 

74  Andrews     v.      Kerr,     49-680; 
Walker  v.   Plummer,  41-697;   Van 
Riper  v.  Baker,  44-450;  Commercial 
Bk.  v.  King,  47-64;    Price  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  42-16; 
Rice  v.  Plymouth  County,  53-635; 
Wisconsin,  I.  &  N.  R.  Co.  v.  Seeor, 
70-647;    Kearney  v.  Ferguson,  50- 
72;  Andrews  v.  Kerr,  49-680;  Par- 
sons  v.   Parsons,   66-754;    Pioneer 
Impt.  Co.  v.  Sterling  Mfg.  Co.,  71 
N.  W.,  409. 

75  Wormley  v.  Dist.  Twp.,  45-666; 
Enix  v.  Miller,  54-551;  see  Holwig 
v.  Rowler,  50-96;  Price  v.  B.,  C.  R. 
&  M.  R.  Co.,  42-16;  In  re  Estate  of 
Holderbaum,    82-69;     Shattuck   v. 
Burlington  Ins.  Co.,  78-377;   Neitz 
v.  Hilker,  84-459;  Brooks  v.  C.,  M. 
&  St.  P.  R.  Co.,  73-179;    Davis  v. 
Campbell,  93-524. 

76  Brant  v.  Lyons,  60-172. 

77  Blackburn  v.  Powers,  40-681; 
Gantz  v.  Clark,  31-254;  Rice  v.  Des 
Moines,  40-638;   State  v.  Hemrick, 


62-514;  Wallace  v.  Robb,  37-192; 
see  State  v.  Postlewait,  14-446;  Mc- 
Intosh  v.Kilbourne,  37-420;  Laugh- 
lin  v.  Main,  63-580;  George  v. 
Swafford,  75-491;  Blaul  v.  Tharp, 
83-665;  Lyman  v.  Landerbaugh,  75- 
481;'  Van  Winkle  v.  C.,  M.  &  St. 
P.  R.  Co.,  93-509;  Wilson  v.  Phelps, 
86-735;  Stein  v.  Council  Bluffs,  72- 
180;  Griffith  v.  B.,  C.  R.  &  N.  R. 
Co.,  72-645;  Evringham  v.  Lee,  78- 
630;  Trapnell  v.  Red  Oak  Junction, 
76-744;  Elder  v.  Stuart,  85-690; 
Herring  v.  Herring's  Estate,  62  N. 
W.,  666. 

78  Rice  v.  Plymouth  County,  33- 
635;    Caffery   v.    Groome,    10-548; 
Briggs  v.  Hartman,  10-63;  Beal  v. 
Stone,   22-447;    Howell   v.   Snyder, 
39-610;    Bowman  v.  Western  Fur 
Mfg.  Co.,  64  N.  W.,  775;  Gray  v.  C., 
M.  &  St.  P.  R.  Co.,  75-100;   Harri- 
son   v.    Snair,    76-558;     Kinser    v. 
Soap  Creek  Coal  Co.,  85-26;  In  re 
Estate     of     Holderbaum,     82-69; 
Thill  v.  Pohlman,  76-638;  State  v. 
Grossheim,  79-75;  Neitz  v.  Hilker, 
84-459;    Chapel  v.  Wadsworth,  85- 
742;  Wertz  v.  Ind.  Dist,  79-423. 

79  Britton  v.  Central  R.  Co.,  39- 
390;  Britt  v.  Case,  58-757;  Greer  v. 
Dickey,    53-755;     Goodykoonts    v. 


576  APPELLATE  PROCEEDINGS.  [§  1340. 

structions,  or  some  of  them,  are  erroneous,  they  should 
all  be  set  out,  and  the  same  is  true  when  it  is  claimed  the 
court  erred  in  refusing  an  instruction  asked.80 

When  it  is  claimed  the  court  erred  in  the  admission 
or  exclusion  of  evidence,  all  of  the  evidence  should  be 
set  out,  or  at  least  sufficient  to  make  the  error  com- 
plained of  apparent.81  If  the  court  is  asked  to  review  the 
action  of  the  lower  court  in  ruling  upon  a  motion  for  a 
new  trial  on  the  ground  of  the  misconduct  of  jurors  or 
of  counsel,  the  record  must  show  that  it  contains  all  of 
the  evidence  upon  the  question  which  was  considered  by 
the  trial  court.82 

§  1340.  What  is  sufficient  to  show  that  the  ab- 
stract contains  all  the  evidence. — The  statement  in  the 
abstract  to  show  that  it  contains  all  the  evidence  (in 
cases  where  it  is  necessary)  will  be  sufficient  if  it  fairly 
apprises  the  opposite  party  and  the  court  that  the  ap- 
pellant claims  that  he  has  presented  an  abstract  of  all 
the  evidence.83  When  the  abstract  contains  a  statement 
that  it  is  an  abstract  of  all  the  evidence,  it  will  be  pre- 
sumed, unless  it  appear  to  the  contrary,  that  such  is  the 
fact,  and  that  it  was  properly  made  a  part  of  the 
record.84  A  statement  that  "the  foregoing  evidence  is 

Ringland,     52-732;      Overholt     v.  Chase    v.    Scott,    33-309;    Huff   v. 

Esmay,   54-748;    Wilson   v.    Blair,  Aultman,  69-71;  Kreuger  v.  Sylves- 

55-745;  Green  v.  Rouen,  59-83;  En-  ter,  69  N.  W.,  1059. 

dersby   v.    Endersby,   49-694;    An-  si  Chase  v.  Scott,  33-309;  Cook  v. 

drews  v.  Kerr,  49-680;    Taylor  v.  S.  C.  &  P.  R.  Co.,  37-426;  State  v. 

Kier,  54-645;  Underwood  v.  Lorn-  O'Brien,  81-93;  Peddicord  v.  Kile, 

bard  Ins.    Co.,    84-25;    Giltrap    v.  83-542;  Paddleford  v.  Cook,  74-4"33; 

Walters,  77-149;  Reed  v.  Larrison,  Deere  v.  Bagley,  80-197;  Hirschl  v. 

77-399;    Second   Nat.    Bk.   v.    Ash,  Case  Threshing  Mch.   Co.,  85-451; 

85-74;    Carl  ton   v.    Brock,    91-710;  Bener  v.  Edington,  76-105;  State  v. 

Walrod  v.  Flanigan,  75-365;  Parks  Row,   81-138;   Kuhn  v.  Gustafson. 

v.  Garner,  77-154;     Peoria    Steam  73-633. 

Marble    Works    v.    Linesenmeyer,  82  State   v.   Bigelow,   70   N.   W., 

80-253;    Bailey   v.    Green,    80-616;  600;   Grannis  v.  Chicago,  St.  P.  & 

Shattuck  v.  Burlington    Ins.    Co.,  K.  C.  R.  Co.,  81-444. 

78-377;    Harper    v.    Gleyslein,    85-  as  Miller  v.  Wolf,  63-233;  Bailey 

709;  Miller  v.  Terkeldsen,  80-476.  v.     Mut.     Benefit     Ass'n,     71-689; 

so  State  v.  Nichols,  38-110;  State  Guinn  v.  Phoenix  Ins.  Co.,  80-346; 

v.  Williamson,  68-351;  Moody  v.  St.  Shattuck  v.  Burlington  Ins.  Co.,  78- 

P.  &  S.  C.  R.  Co.,  41-284;   State  v.  377. 

Stanley,  48-221;  State  v.  Johnson,  s*  Alexander  v.  McGraw,  57-287. 
19-230;  Bower  v.  Stewart,  30-579; 


§  1340.]  APPELLATE  PROCEEDINGS.  577 

by  the  court  duly  certified  to  be  all  the  evidence  offered 
by  either  party  on  the  trial  of  the  cause,"  is  sufficient.85 
And  when  the  abstract  stated  that  it  was  all  the  evi- 
dence, and  that  within  the  proper  time  a  bill  of  excep- 
tions was  filed,  embracing  in  the  record  the  testimony 
set  out,  it  was  held  sufficient.86  And  when  it  stated  that 
it  was  all  the  evidence,  and  that  it  was  taken  down  in 
writing-  by  order  of  the  court,  and  made  a  part  of  the 
record,  it  was  held  the  case  was  triable  de  novo.87 
Where  certain  depositions  were  referred  to  by  the  judge 
in  his  certificate  as  being  marked,  but  the  abstract  did 
not  identify  them  as  being  thus  referred  to  in  the  certifi- 
cate, but  it  was  alleged  in  an  amended  abstract  that  all 
the  evidence  offered,  introduced  or  used  on  the  trial  was 
embraced  in  the  original  and  amended  abstracts,  which 
allegation  was  not  denied,  it  was  held  that  the  court 
would  presume  it  had  all  the  evidence  before  it.88 

It  is  not  sufficient  that  it  appears  from  the  abstract 
that  all  the  evidence  was  reported  and  certified  to  by  the 
reporter  and  judge,  nor  is  it  sufficient  to  set  out  such  cer- 
tificates; the  abstract  must  state  that  the  abstract  is  an 
abstract  of  all  the  evidence.89  A  statement  in  the  bill 
of  exceptions  that  it  contains  all  of  the  evidence  does 
not  show  that  the  abstract  contains  all  of  the  evidence.90 
Nor  will  the  fact  that  the  abstract  contains  a  copy  of  the 
certificate  of  the  reporter  and  of  the  bill  of  exceptions 
signed  by  the  judge.91  An  agreement  for  the  submission 
of  a  case  on  the  abstracts  does  not  admit  that  all  of  the 
evidence  is  contained  therein.92  A  statement  that  the 

ss  Macleod  v.  Geyer,  53-615.  Hasner  v. -Patterson,  70-681;   Huff 

ssDaere  v.  Needles,  65-101.  v.  Farwell,  67-298;   Rice  v.  Plym- 

8?  Stoddard  v.  Hard  wick,  46-160.  outh  County,  53-635;  Wisconsin,  I. 

88  Paine  v.  Means,  65-547.  &  N.  R.  Co.  v.  Secor,  70-647;  Drake 

soCassady    v.    Spofford,    57-237;  v.  Kaiser,  73-703;   Polk  County  v. 

Ward    v.    Snook,    61-610;    Hall    v.  Nelson,  75-648;    Ainslee  v.  Wynn, 

Harris,  61-500;  Phoenix  Ins.  Co.  v.  65  N.  W.,  401;   Capital  City  State 

Findley,  59-591;    Ohrt  v.  Ober,  51-  Bk.  v.  Hammer,  70  N.  W.,  89;  Col- 

540;     Conwell    v.    House,    57-754;  lins  v.  Wilson,  68  N.  W.,  916. 

Porter  v.  Stone,  62-442;  Wisconsin,          oo  Wicke  v.  Iowa  State  Ins.  Co., 

I.   &   N.   R.   Ce.   v.   Secor,   70-647;  90-4. 

Fulliam      v.      Muscatine,     70-436;          m  State  v.  Strohbehn,  65  N.  W., 

Woodrum     v.     Carraher,     69-145;  304. 

*  »2Koster  v.  Seney,  69  N.  W.,  868; 

Vol.  H—37 


578  APPELLATE  PROCEEDINGS.  [§  1341. 

abstract  contains  "substantially"  all  the  evidence,  or 
that  the  evidence  was  "essentially  as  follows,"  or  that 
it  was  "all  the  evidence  bearing  upon  or  introduced  to 
sustain  the  issues  and  findings  as  to  which  plaintiff  ap- 
pealed," or  that  it  contains  "the  evidence,"  is  not  suffi- 
cient.93 Ordinarily  it  is  not  necessary  to  set  out  in  full 
the  certificate  of  the  judge  in  the  abstract.94  In  the  fol- 
lowing cases  the  sufficiency  of  the  abstract  is  further  dis- 
cussed.93 Stipulations  waiving  a  transcript  and  agree- 
ing that  a  cause  «hall  be  heard  upon  the  abstract  will 
not  be  a  waiver  of  the  statutory  requirements  as  to  ap- 
peals, nor  of  the  objection  that  the  abstract  did  not  con- 
tain all  the  evidence.98 

§  1341.  Assignment  of  errors  when  necessary.— 
The  abstract,  except  in  cases  triable  de  novo,  must  con- 
tain an  assignment  of  errors;  such  assignment  need  fol- 
low no  stated  form,  but  must  clearly  and  specifically  in- 
dicate the  very  error  complained  of.  Among  several 
points  in  a  demurrer,  or  in  .a  motion,  or  instructions  or 
rulings  on  an  exception,  the  one,  or  those  relied  upon, 
must  be  separately  stated,  and  the  court  will  only  con- 
sider errors  assigned  with  the  required  exactness;  but 
the  court  must  decide  on  each  error  thus  assigned.97 
When  such  assignment  is  necessary,  it  must  be  served 
on  the  appellee  or  his  attorney  ten  days  before  the  first 
day  of  the  trial  term.  Unless  good  cause  for  the  delay  be 
shown  the  appellee  may  have  the  appeal  dismissed  or 
the  judgment  affirmed.98 

Assignments  of  error  are  always  necessary  in  a  law 

but  see  Westervelt  v.  Huiskamp,  70  1045;  Casey  v.  Ballon  Banking  Co., 

N.  W.,  125.  67  N.  W.,  98;  Dean  v.  Zenor,  65  N. 

93  Britt  v.   Case,   58-757;    Blohm  W.,  410;  Boyd  v.  Watson,  70  N.  W., 

v.  Sweeney,  66-604;  Roe  v.  Wilmot,  120. 
51-689;  Parsons  v.  Parsons,  66-754.          as  Code,  Sec.  4137;  Rules,  Sec.  37; 

94Yantv.  Harvey,  55-421.  Conner  v.  Long,  63-295;   Ind.  Dist. 

as  Van  Winkle  v.  Iowa,  etc.,  56-  v.  Ind.  Dist.,  48-206;  Betts  v.  Glen- 

245;  Higgins  v.  Mendenhall,  51-135.  wood,  52-124;    Wise  v.  Usry,  72-74; 

»«  Lewis  v.  Pearson,  50-702;   Al-  Russell   v.   Johnston,   67-279;    Ex- 

len  v.  Hull,  56-767.  change  Bk.  v.  Pottorfe,  65  N.  W., 

a?  Code,    Sec.   4136;    Rules,    Sec.  312;  Lundon  v.  Waddick,  67  N.  W., 

36;  Shakman  v.  Potter,  66  N.  W.,  388. 


§  1342.]  APPELLATE  PROCEEDINGS.  579 

action,"  and  they  are  necessary  in  equity  cases  when 
the  case  is  not  in  proper  form  for  trial  de  novo.1  And 
they  are  necessary  when  the  appeal  is  taken  in  an  equity 
case  from  a  ruling  on  a  motion  or  demurrer.2  But  the 
failure  to  assign  errors  in  time  may  be  waived.3  And 
sometimes  an  assignment  will  not  be  stricken.4  And 
an  assignment  of  errors  may  be  amended.5  But  costs 
may  be  taxed  to  the  party  filing  such  amended  assign- 
ment.6 But  such  assignments  are  not  necessary  in  an 
equity  action  which  is  triable  de  novo  in  the  supreme 
court.7 

§  1342.  Of  the  sufficiency  of  the  assignment  of 
errors. —  As  has  been  seen,  assignments  of  error  must 
specify  the  very  error  complained  of;  and  in  the  follow- 
ing cases  assignments  have  been  held  insufficient  in  that 
respect :  "That  the  court  erred  in  its  action  in  regard  to 
the  jury."8  That  "the  court  erred  in  overruling  the  de- 
fendant's exceptions  to  the  report  of  the  referee  and  en- 
tering judgment  against  defendant."9  "That  the  court 
erred  in  rendering  judgment  for  appellee."10  That  "the 
court  erred  in  admitting  certain  evidence  of  the  defend- 
ant against  plaintiff's  objection,"11  and  assignments  that 
"the  verdict  is  contrary  to  law."  "That  the  court 
ereed  in  admitting  testimony  on  the  trial."  That  "the 

»9Rarnhart     v.     Fair,      55-366;  Livingstone,  57-307;  Smith  v.  Hill, 

Wood  v.  Whitton,  66-295;  Roberts  83-684. 

v.  Cass,  27-225;  Borland  v.  McNal-  *  Ingersoll  v.    Hay  ward,    92-159; 

ly,  48-440;  Boyd  v.  Watson,  70  N.  Lundon  v.  Waddick,  67  N.  W.,  388. 

W.,  120.  s  Stanley    v.    Barringer,     74-34; 

1  Schmeltz  v.    Schmeltz,    52-512;  Loughran  v.  Des   Moines,  72-382; 
Cross  v.  B.  &  S.  W.  R.  Co.,  51-683;  Kendig     v.      Overhulser,      58-195; 
Jordan  v.   Wimer,   46-65;    Lutz  v.  Brown  v.  Rose,  55-734. 

Kelley,  47-307;  Lynch  v.  Lynch,  28-          e  Stanley  v.  Barringer,  74-34. 
326;    Jones  v.  Clark,  37-586;    Mai-          ?  Hackworth  v.   Zollars,   30-433; 

lory  v.  Luscombe,  31-269;   Reed  v.  Sherwood     v.     Sherwood,     44-192; 

Larrison,   77-399;    Giltrap  v.  Wai-  Early  v.  Burt,   68-716;    Code,   Sec. 

ters,  77-149.  4136;  Clark  v.  Raymond,  84-251. 

2  Powers  v.  O'Brien  Co.,  54-501;          s  Hannon  v.  Chandler,  3-150;  see 
Patterson  v.  Jack,  59-632;  Bank  v.  Garrett  v.  Wells,  63-256. 
Pottorfe,  65   N.   W.,  312;    see'  last          »  Hoefer  v.  Burlington,  59-281. 
reference.  10  Tomblin  v.  Ball,  46-190;  Klotz 

a  Exchange  Bk.  v.  Pottorfe,  65  N.      v.  James,  64  N.  W.,  648. 
W.,  312;   Andrews  v.  Burdick,  62-          n  Merchants    U.    B.    W.    Co.    v. 
714;    University  of  Des  Moines  v.      Rice,  70-14. 


580 


APPELLATE    PROCEEDINGS. 


[§  1342. 


court  erred  in  excluding  testimony"  on  the  trial,  or  "in 
overruling  defendant's  motion  in  arrest  of  judgment  and 
for  a  new  trial,"  are  all  insufficient.12  And  in  the  cases 
cited  below  assignments  were  held  insufficient.13  If  the 
assignment  is  as  to  error  in  instructions  it  will  be  disre- 
garded unless  it  point  out  the  particular  matter  com- 
plained of.1*  And  in  the  following  cases  it  was  held  that 
the  error  was  pointed  out  with  sufficient  certainty.15  An 
assignment  to  the  giving  of  instructions  designating 
them  by  number  and  saying  that  the  court  erred  in  giv- 
ing them  and  each  one  of  them  is  sufficiently  specific.16 
If  a  motion  is  made  upon  a  statutory  ground  and  the 
overruling  of  it  is  assigned  as  error,  it  will  be  sufficient.17 
It  will  be  otherwise  as  to  a  motion  containing  several 
grounds.  An  assignment  of  errors  in  overruling  a  mo- 
tion for  a  new  trial  will  not  be  good  unless  it  points  out 
the  specific  grounds  of  the  objection.18  And  an  assign- 


12  Wood  v.  Hallowell,  68-377; 
Armstrong  v.  Killen,  70-51;  Code, 
Sec.  4136;  Hamilton  Buggy  Co.  v. 
Iowa  Buggy  Co.,  88-364;  Mara  v. 
Bucknell,  90-757. 

is  Hawes  v.  Twogood,  12-582; 
Wilson  v.  Hillhouse,  14-199;  Mor- 
ris v.  C.,  B.  &  Q.  R.  Co.,  45-29; 
Oschner  v.  Sc'hunk,  46-293;  Bard- 
well  v.  Clare,  47-297;  McCormick  v. 
C.,  R.  I.  &  P.  R.  Co.,  47-345; 
Nockles  v.  Eggspieler,  47-400;  Mof- 
fatt  v.  Fisher,  47-473;  Benton  v. 
Nichols,  47-698;  Belts  v.  Glenwood, 
52-124;  Black  v.  Boyd,  52-719; 
Brown  v.  Rose,  55-734;  Wilson  v. 
Klokenteger,  56-764;  Low  v.  Fox, 
56-221;  Vanderberg  v.  Camp,  68-212; 
Waller  v.  Waller,  76-513;  Wads- 
worth  v.  First  Nat.  Bk.,  73-425;  Mc- 
Murray  v.  Capital  Ins.  Co.,  87-453; 
Shroeder  v.  Webster,  88-627;  see 
Duncombe  v.  Powers,  78-185;  Al- 
broskey  v.  Iowa  City,  76-301;  Kauf- 
man v.  Farley  Mfg.  Co.,  78-679; 
Farmers  Sav.  Bk.  v.  Wilcka,  71  N. 
W.,  200;  Keokuk  Stove  Works  v. 
Hammond,  63  N.  W.,  563;  Burnside 
v.  Eaton,  64  N.  W.,  786. 

i*  Peck  v.  Hendershott,  14-40; 
Brewington  v.  Patton,  1-121;  Blair 
v.  Madison  County,  81-313;  Wicke 
v.  Iowa  State  Ins.  Co.,  90-4. 

is  Sherwood    v.     Snow,     46-481; 


Kendig  v.  Overhulser,  58-195; 
Clark  v.  Rails,  50-275;  Hammer  v. 
C.,  R.  I.  &  P.  R.  Co.,  70-623;  Hath- 
away v.  State  Ins.  Co.,  64-229; 
Shaefert  v.  C.,  M.  &  St.  P.  R.  Co., 
62-624;  Ludwig  v.  Blackshere,  71 
N.  W.,  356. 

16  Kendig  v.  Overhulser,  58-195; 
Clark  v.  Rails,  50-275;  Wood  v. 
Whitton,  66-295;  Hammer  v.  C.,  R. 
I.  &  P.  R.  Co.,  70-623;  Hathaway 
v.  State  Ins.  Co.,  64-229;  Koenig  v. 
C.,  M.  &  St.  P.  R.  Co.,  65  N.  W., 
314. 

IT  Thomas  v.  Hoffman,  62-125; 
see  Nichols  v.  Wood,  66-225;  Peter- 
son v.  Walter  A.  Wood,  etc.,  66  N. 
W.,  96;  Moffit  v  Albert,  66  N.  W., 
162. 

is  Leekins  v.  Nordyke,  etc.,  66- 
471;  Reilly  v.  Ringland,  44-422; 
Richardson  v.  McCormick,  47-80; 
Stevens  v.  Brown,  60-403;  Marsel 
v.  Bowman,  62-57;  Terry  v.  Taylor, 
64-35;  McCormick  v.  C.,  R.  I.  &  P. 
R.  Co.,  47-345;  Oschner  v.  Schunk, 
46-293;  Foley  v.  Kirkland,  66-227; 
HaKHer  v.  Patterson,  70-681;  Morris 
v.  C.,  B.  &  Q.  R.  Co.,  45-29;  see  Kit- 
terman  v.  C.,  M.  &  St.  P.  R.  Co., 
69-440;  State  v.  Harbach,  78-475; 
Koenig  v.  C.,  M.  &  St.  P.  R.  Co., 
65  N.  W.,  314;  Duncombe  v.  Pow- 
ers, 75-135. 


§  1342.]  APPELLATE  PROCEEDINGS.  581 

raent  of  error  in  a  ruling  of  the  court  sustaining  several 
demurrers  of  different  defendants  is  not  sufficiently 
specific.19  An  assignment  of  error  that  the  court  erred 
in  his  rulings  on  the  objections  to  the  questions,  where 
the  questions  and  objections  are  set  out  in  the  foregoing 
abstract,  is  too  general  to  be  considered.20  Assignments 
that  the  court  erred  in  sustaining  defendant's  demurrer 
and  in  entering  judgment  against  plaintiff  for  costs,  and 
in  dismissing  plaintiff's  petition,  are  defective,  in  not 
pointing  out  any  particular  ground  as  error.21  An  as- 
signment of  error  that  the  court  erred  in  sustaining  a 
demurrer  and  an  assignment  that  the  court  erred  in  sus- 
taining a  motion  for  default  and  judgment  and  to  strike 
an  amended  and  substituted  petition  is  not  sufficiently 
specific.22  An  assignment  which  states  that  "The  court 
erred  in  admitting  testimony  objected  to  by  the  defend- 
ant and  in  excluding  testimony  offered  by  defendant," 
is  too  indefinite.23  An  assignment  of  error  presenting  a 
question  as  to  the  correctness  of  a  ruling  based  upon 
evidence  will  not  be  considered  where  the  record  does 
not  show  that  it  contains  all  of  the  evidence.24  An  as- 
signment of  error  in  overruling  objections  thereto,  "each 
of  the  following  questions  and  answers,"  followed  by 
page  of  printed  questions  and  answers  without  objec- 
tions, is  not  sufficiently  specific.25  And  an  assignment  of 
error  that  the  court  erred  in  rendering  judgment  will  be 
valid  only  where  the  court  rendered  its  decision  in  writ- 
ing, stating  the  facts  found  and  the  conclusions  of  law 
thereon,  or  where  the  case  was  tried  by  the  court  and  the 
evidence  was  all  brought  up  by  a  bill  of  exceptions.26 
Under  proper  circumstances  an  assignment  of  errors 
may  be  amended.27 

19  Bradley  v.  Johnson,  67-614.  2*  Collins   v.  Wilson,  68  N.  W., 

20  Dungan  v.  Railway,  64  N.  W.,      916. 

762.  25  Latimer  v.  State  Bk.,  71  N.  W., 

21  Esty  v.  McGee,  62  N.  W.,  673.  225. 

22  Guyar  v.  Minnesota  Thresher  26  Dean  v.  White,  5-266;  Klotz  v. 
Mfg.  Co.,  66  N.  W.,  83.  James,  64  N.  W.,  648. 

23  Buford  v.  De  Voe,  65  N.  W.,  27  Hall  v.  Chicago,  R.  I.  &  P.  R. 
413  Co.,  84-311;  Bunyan  v.  Loftus,  90- 


582  APPELLATE    PROCEEDINGS.  [§§  1343,    13-14. 

§  1343.  Of  service  and  filing  the  assignment  of 
errors. —  If  the  assignment  is  filed  at  the  time  required 
it  can  not  be  stricken  from  the  files,  though  not  served 
or  filed  until  after  appellee's  argument  is  filed.28  But  it 
has  been  held  that  the  appeal  will  be  dismissed  if  the  as- 
signment is  not  served  in  time.29  And  an  assignment 
presented  by  the  appellant  with  his  reply  to  appellee's 
argument  will  not  be  considered.30  Nor  will  it  be  wThen 
it  is  not  filed  within  ten  days  before  the  first  day  of  the 
term,  and  not  until  appellant's  argument  is  filed.31  An 
objection  to  an  assignment  will  be  deemed  waived  if  not 
made  before  final  submission.32  An  amended  assiiiii- 
ment  filed  more  than  ten  days  before  the  term  at  which 
the  cause  is  submitted,  will  be  considered.33  And  an  as- 
signment at  the  end  of  appellant's  argument,  which  is 
not  objected  to  by  appellee  until  after  the  filing  of  his 
argument,  and  within  two  days  of  the  submission  of 
the  cause,  is  sufficient.34 

§  1344.  Of  the  form  of  the  assignment  and  of  the 
effect  of  failing  to  argue  assignments. — Assignments 
of  error,  though  properly  made,  if  not  argued,  will  not 
be  considered,  and  will  be  deemed  waived.35 

The  assignment  may  be  in  the  following  form: 

FORM  OF  ASSIGNMENT  OF  ERRORS. 
Title,     ) 
Venue.    \ 

Appellant  assigns  the  following  errors: 

1.    The  court  erred  in  admitting  in  evidence  the  deed  (here  desig- 
nate it). 

122;     Buhlman  v.   Humphrey,   86-  Marker  v.  Dunn,  68-720;  Goodnow 
697;  Stanley  v.  Barringer,  74-34.  v.  Wells,  67-654;  Manning  v.  B.,  C. 
as  Connor  v.  Long,  63-295.  R.  &  N.  R.  Co.,  64-240;   Patterson 
29  Ind.  Dist.  v.  Ind.  Dist.,  48-206.  v.  Seaton,  70-689;  Wood  v.  Hallo- 
so  Betts  v.  Glenwood,  52-124.  well,  68-377;  Marsh  v.  C.,  R.  I.  & 
si  Russell    v.    Johnston,    67-279;  P.    R.   Co.,  79-332;     Estabrook    v. 
Code,  Sec.  4137;  Wise  v.  Usry,  72-  Riley,   81-479;    Hull  v.   Ind.    Dist., 
74.  82-686;   Young  v.  Omaha  &  St.  L. 
32  Andrews  v.  Burdick,  62-714.  R.  Co.,  92-583;   Niemeyer  v.  Wey- 
ss  Kendig  v.  Overhulser,  58-195;  erhaeuser,   64    N.   W.,    416;     Dun- 
Brown  v.  Rose,  55-734.  combe  v.  Powers,  75-185;  Manning 
34  University   of   Des   Moines  v.  v.   B.,  C.   R.  &  N.  R.  Co.,  64-240; 
Livingston,  57-307.  Cason  v.  Ottumwa,  71  N.  W.,  192; 
ss  Renwick  v.  D.  &  N.  W.  R.  Co.,  McCandless   v.   Hazen,   67    N.   W., 
49-664;  Parsons  v.  Parsons,  66-754;  2P6. 


§  1345.]  APPELLATE    PROCEEDINGS.  583 

2.  The  court  erred  in  giving  instruction  number  1  asked  by  plain- 
tiff, in  this,  that  (here  point  out  the  error). 

3.  The  court  erred  in  giving  to  the  jury  paragraph  1  of  its  charge 
to  the  jury  in  this  (here  point  out  the  error). 

4.  The  court  erred  in  refusing  to  give  instruction  number  1,  asked 
by  the  defendant. 

5.  The  court  erred,  etc.  (set  out  in  the  same  manner  any  other  er- 
rors complained  of). 

While  it  is  possible  that  the  above  form  may  require  a  more  specific 
statement  than  is  in  all  cases  necessary,  yet  one  can  hardly  be  too  spe- 
cific in  pointing  out  the  errors  of  which  he  complains. 

§  1345.  Of  the  argument. — The  printed  brief  and 
argument  must  state  in  divisions  thereof  properly  num- 
bered, the  several  propositions  of  law  claimed  by  the 
party  making  such  brief  or  argument  to  be  involved  in 
the  case  before  the  supreme  court,  and  the  authorities  re- 
lied upon  in  support  of  the  same.  When  an  authority 
cited  is  an  adjudicated  case,  the  brief  or  argument  must 
show  the  name  of  the  parties,  the  volume  in  which  it  is 
reported,  and  the  page  or  pages  containing  the  matter  to 
which  the  attorney  desires  to  call  the  attention  of  the 
court.  When  the  reference  is  a  text  book,  the  number  or 
date  of  the  edition  must  be  stated,  with  the  number  of  the 
volume  and  page.30 

When  the  appeal  presents  to  the  court  only  questions 
of  law  upon  rulings  of  the  court  below,  the  appellant 
must  open  and  close  the  argument,  and  must,  at  least 
thirty  days  before  the  day  assigned  for  the  hearing  of  the 
case,  serve  upon  an  attorney  for  each  appellee  copies 
of  his  brief  of  points  and  authorities  or  argument. 

If  appellee  desires  to  be  heard  he  must,  at  least  ten 
days  prior  to  the  hearing,  serve  upon  an  attorney  for  each 
appellant,  copies  of  his  brief  or  argument;  and  the  reply, 
if  in  print,  must  be  served  at  least  three  days  before  the 
case  is  to  be  finally  submitted.  If  the  trial  in  the  su- 
preme court  is  de  novo,  and  the  appellant  has  the  burden, 
he  must  observe  the  foregoing  rules.  But  if  appellee  has 
the  burden  he  may  waive  his  right  to  open  the  argument 
by  serving  notice  in  writing  of  his  intention  to  do  so  upon 

36  Rules,  Sec.  69. 


584  APPELLATE    PROCEEDINGS.  [§  1345. 

appellant  or  his  attorney  at  least  thirty  days  before  the 
day  assigned  for  the  hearing  of  the  cause.  Appellant 
will  then  be  entitled  to  open  the  argument,  and  must 
serve  copies  of  his  argument  upon  an  attorney  for  each 
appellee  ten  days  before  the  hearing.  Appellee  may 
then,  and  at  least  three  days  before  the  submission,  serve 
upon  an  attorney  for  each  appellant,  copies  of  his  argu- 
ment, which  must  be  strictly  confined  to  matters  in  re- 
ply to  appellant's  argument. 

A  failure  to  comply  with  the  above  requirements  will 
entitle  the  party  not  in  default,  unless  the  court  shall, 
for  sufficient  cause,  otherwise  order,  to  a  continuance,  or 
to  have  the  case  submitted  at  his  option  upon  the  brief 
and  arguments  on  file  when  the  default  occurred.37  In 
a  case  triable  de  novo  the  party  having  the  burden  of 
proof  in  the  case  is  entitled  to  the  opening  and  closing  of 
the  argument.  All  printed  briefs  and  arguments  must 
be  prepared  as  required  by  section  66  of  the  rules,  and 
each  party  must  file  with  the  clerk  twelve  printed  copies 
of  each  brief  or  argument,  together  with  proper  evi- 
dence of  service  of  the  same  upon  opposing  attorneys. 

The  clerk  will  note  upon  his  docket  the  date  of  the 
service  and  filing  of  all  manuscripts  and  arguments,  and 
no  brief  or  argument  not  served  or  filed  within  the  time 
prescribed  by  the  rules  will  be  transmitted  to  the 
judges  or  considered  by  them  in  disposing  of  the  case. 
No  cause  will  be  entered  as  submitted  until  the  argu- 
ments are  finally  and  actually  concluded.38  Under  the 
prior  rules  arguments  were  sometimes  filed  after  the 
opinion  in  a  case  had  been  written  and  the  court  was 
finally  compelled  to  refuse  to  take  the  submission  of 
causes  until  they  had  been  fully  argued.  Notice  in  writ- 
ing or  in  print  of  intention  to  argue  a  case  orally,  must 
be  served  upon  an  attorney  for  the  adverse  party  and 
filed  with  the  clerk  fifteen  days  before  the  first  day  of 
the  term,  and  the  party  who  fails  to  so  serve 

ST  Rules,   Sec.  39;    Steel  v.  Fife,      287;  Devore  v.  Adams,  68-385. 
48-99;    Alexander  v.    McGrew,   57-          38  Rules,  Sec.  40. 


§  1345.]  APPELLATE    PROCEEDINGS.  585 

and  file  such  notice  will  not  be  entitled  to  argue 
orally,  except  in  reply  to  an  oral  argument  for 
the  adverse  party.39  If  appellant  has  given  the  notice, 
he  is  entitled  to  open  and  close  the  argument,  unless  the 
cause  is  triable  de  novo  and  the  appellee  has  the  burden. 

If  the  notice  was  given  by  appellee  only,  he  is  entitled 
to  the  opening,  and  the  appellant  must  confine  his  remarks 
to  a  reply,  unless  the  cause  is  triable  de  novo.  If  the 
cause  is  triable  de  novo  and  appellee  has  the  burden,  he 
may,  if  he  has  given  the  requisite  notice,  open  and  close 
the  argument.40 

No  oral  argument  can  exceed  one  hour  in  length,  un- 
less an  extension  of  time  is  granted  before  the  argument 
of  the  case  is  commenced.  Only  two  attorneys  will  be 
heard  on  each  side,  but  in  case  no  oral  argument  is  made 
on  one  side,  only  one  attorney  will  be  heard  for  the 
other.41 

A  failure  to  file  an  argument  will  be  considered  an 
abandonment  of  the  appeal,  and  in  such  case  the  decision 
of  the  lower  court  will  be  affirmed.42  But  a  case  not 
argued  by  the  appellee  will  be  reversed  if  the  court 
reaches  the  conclusion  that  it  ought  to  be  reversed  on  any 
ground.43  In  an  equity  case  if  the  appellee  is  plaintiff 
and  files  an  argument  and  none  is  filed  for  the  appellant 
the  appeal  will  be  treated  as  abandoned.44  The  court 
will  not  decide  questions  not  argued  by  both  sides  unless 
it  be  absolutely  necessary  so  to  do.45  An  argument  will 
not  be  stricken  out  because  not  tiled  in  time,  but  costs 
may  be  taxed  to  the  party  filing  it.40  But  where  a  party 
has  improperly  filed  the  opening  argument  it  may  be 

89  Rules,  Sec.  41.  Bluffs,  69-310;   Russell  v.  Torbett, 

40  Rules,  Sec.  42.  81-754. 

41  Rules,  Sec.  43.  44  Beams  v.  Crawford,  86-753. 

42  Mores     v.     Hanchett,     54-747;  45  McKern '    v.      Albia,     69-447; 
Dining  v.  Bement,  54-156;  Cline  v.  Deeds   v.   C.,   R.   I.    &    P.    R.    Co., 
Phipps,   62-759;    Lamp  v.    Sievers,  69-164;       Gilfeather      v.      Council 
66-85;    Devore   v.    Adams,    68-385;  Bluffs,  69-310;  Humphrey  v.  Walk- 
McKern  v.  Albia,  69-447;  Raynor  v.  er,  75-408;    Dodd  v.  Scott,  81-319; 
Raynor,  77-282;   State  v.  Price,  64  State  v.  Semotan,  85-57. 

N.  W.,  596.  4G  Bartle  v.   Des  Moines,  37-635; 

»3  Deeds  v.  C.,  R.  I.  &  P.  R.  Co.,      Renwick  v.  Bancroft, 59-116;  Smith 

C9-164;       Gilfeather      v.      Council      v.  McFadden,  56-482;  Cox  v.  F.  C. 


58C  APPELLATE   PROCEEDINGS.  [§  1346. 

stricken  from  the  files.47  Where  a  cause  has  been  regu- 
larly submitted,  it  will  not  be  remanded  on  the  mere 
statement  of  opposing  counsel  in  a  petition  for  a  rehear- 
ing, that  the  argument  was  not  properly  served.48  Points 
raised  in  oral  argument  which  are  not  made  in  the  print- 
ed briefs  will  not  be  considered.40 

It  is  not  proper  for  an  attorney  in  his  argument  to 
state  facts  outside  the  record  impeaching  the  judicial 
conduct  of  the  trial  judge.50  Reference  in  the  argument 
to  the  abstract  must  give  the  pages  where  the  matter  re- 
ferred to  can  be  found.51 

§  1346.  Of  the  duty  of  the  clerk.— The  clerk  of  the 
supreme  court  must  docket  the  causes  as  the  same  are 
filed  in  his  office,  and  arrange  and  set  a  proper  number 
for  trial  each  day  of  the  term,  placing  together  those  from 
the  same  judicial  district,  and  must  cause  notice  thereof 
to  be  published  and  distributed  in  such  manner  as  the 
court  may  direct.  No  cause  will  be  docketed  unless  the 
abstract  required  by  the  rules  is  filed  fifteen  days  before 
the  first  day  of  the  term  at  which  the  cause  is  set  down 
for  trial,  nor  unless  the  docket  fee  is  paid.52  A  cause 
will  be  docketed  as  it  was  in  the  court  below  and  the 
party  taking  the  appeal  will  be  called  the  appellant,  and 
the  other  party  the  appellee.53  Causes  not  filed  in  time 
will  go  to  the  next  term.  The  clerk,  immediately  after 
the  time  expires  during  which  causes  may  be  docketed 
for  trial  at  a  term  of  court,  must  make  and  cause  to  be 
printed  without  delay,  the  docket  for  the  term,  which 
must  give  all  the  causes,  whether  continuances  or  ap- 
pearances, for  trial  at  such  term,  and  shall  designate  the 
number,  the  party  appealing,  the  court  and  county  from 
which  the  appeal  is  brought,  the  counsel  of  the  parties, 
the  day  each  cause  is  assigned  for  trial  and  such  other 

&  S.  R.  Co.,  66-289;  Kellam  v.  Me-  v.  Drake,  69-760;    Cassidy  v.  Palo 

Alpine,  63-251.  Alto  County,  58-125. 

47  Devore  v.  Adams,  68-385.  ^  Herriatt  v.  Kersey,  69-111. 

«8  Hall  v.  Harris,  61-500.  52  Code,  Sees.  4117,  4121;   Rules, 

49  Iowa  H.  Co.  v.  Des  Moines  N.  Sees.  15,  17. 

Co.,  63-285.  os  Rules,  Sec.  16. 

so  Paine  v.  Frost,  67-282;  see  Sax 


APPELLATE    PROCEEDINGS.  587 

matter  for  information  of  the  court  and  attorneys  as 
may  be  conveniently  given.  He  must  forward  to  each 
judge  of  the  court,  to  each  attorney  having  causes  at  the 
term  and  to  the  clerk  of  the  district  and  superior  courts 
of  each  county  a  copy  of  said  docket.54  The  clerk  must 
with  as  little  delay  as  possible,  send  to  each  judge  of  the 
court  a  copy  of  the  abstracts,  denials  of  abstracts,  briefs 
and  arguments,  and  other  printed  matter  filed  in  each 
case  docketed  or  set  down  for  trial  upon  the  docket  of 
the  term.55 

§  1347.  Of  motions. — In  addition  to  what  has  hereto- 
fore been  said  regarding  motions  it  may  be  remarked 
that  all  motions  made  in  a  cause  after  judgment,  or  after 
the  time  assigned  for  the  hearing  of  causes  from  the  dis- 
trict from  which  it  was  appealed,  will  be  heard  only  upon 
proof  of  service  of  reasonable  notice'of  such  motion  upon 
the  adverse  partj^.56  All  motions  must  be  in  writing, 
filed  with  the  clerk,  and  entered  upon  the  motion  book, 
and  served  by  copy  of  the  same  and  of  all  affidavits  or 
documents  upon  which  they  are  based,  upon  the  opposite 
party  or  attorney,  ten  days  before  the  morning  on  which 
the  causes  for  the  district  are  set  for  hearing.  Such  op- 
posite party  will  then  have  five  days  to  file  papers  in 
resistance  to  the  same,  copies  of  which  must  be  served 
upon  the  other  party  or  attorney,  and  no  papers  will  be 
regarded  which  do  not  appear  to  have  been  so  served; 
but  this  rule  does  not  apply  to  motions  the  causes  where- 
of arise  after  the  filing  of  the  abstract,  but  in  such  xBases 
timely  notice  of  such  motions  must  be  given  to  the  op- 
posite attorneys,  nor  does  this  rule  apply  as  to  time  of 
service  of  motions  for  a  continuance.57  If  service  is  not 
made  as  required  the  motion  will  not  be  considered,58  and 
the  same  is  true  if  no  proof  of  service  is  on  file.59  Argu- 
ments in  support  of  motions,  if  any,  must  be  filed  in  writ- 

54  Rules,  Sec.  18.  58  Morrison    v.    Springfield    En- 

ss  Rules,  Sec.  91.  gine,    etc.,    Co.,   84-637;    Wicke  v. 

OB  Rules,  Sec.  38;   Subd.  3.  Iowa  State  Ins.  Co.,  90-4. 

57  Code,    Sec.    4138;    Rules,  Sec.          59  Blasser  v.  Moats,  81-460. 
38;   Subd.  1  and  2. 


588  APPELLATE  PEOCEEDIXGS.  [§  1347. 

ing  or  print  before  the  morning  of  the  day  set  for  hearing 
of  the  cause,  and  served  by  copy  upon  the  opposite  party 
or  attorney  when  the  motion  is  served.  And  arguments 
in  resistance,  if  any,  must  be  filed  in  writing  or  print  be- 
fore the  morning  of  the  day  set  for  hearing  of  the  cause, 
and  served  by  copy  on  the  opposite  party  or  attorney 
when  the  papers  in  resistance  are  served.60 

The  death  of  one  or  all  of  the  parties  will  not  cause 
the  proceedings  to  abate,  but  the  names  of  the  proper 
persons  may  be*  substituted,  as  is  provided  in  such  cases 
in  the  district  court,  and  the  cause  may  proceed.  The 
court  may  also  grant  a  continuance  when  such  a  course 
will  be  calculated  to  promote  the  ends  of  justice.61  When 
the  appellant  has  no  right,  or  no  further  right,  to  prose- 
cute the  appeal,  the  appellee  may  move  to  dismiss  the  ap- 
peal, and  if  the  grtfunds  of  the  motion  do  not  appear 
in  the  record,  or  by  a  writing  purporting  to  have  been 
signed  by  the  appellant  and  filed,  they  must  be  verified 
by  affidavit.62  The  appellee  may,  by  answer  or  abstract, 
filed  and  verified  by  himself,  agent  or  attorney,  plead  any 
facts  which  render  the  taking  of  the  appeal  improper  or 
destroy  the  appellant's  right  of  further  prosecuting  the 
same,  to  which  answer  the  appellant  may  file  a  reply  or 
abstract,  likewise  verified  by  himself,  his  agent  or  attor- 
ney, and  the  question  of  law  or  fact  therein  will  be  de- 
termined by  the  court  upon  evidence  in  the  form  of  affi- 
davits unless  otherwise  ordered.63  When  the  appellant 
has  accepted  the  benefit  of  the  judgment,  or  has  settled 
or  lost  his  interest  in  the  subject  matter  of  the  appeal, 
or  is  not  the  real  party  in  interest  and  never  authorized 
the  appeal  it  will  be  dismissed.64  Also  in  other  cases.63 

eo  Rules,  Sec.  38;   Subd.  4.  ™  Code,  Sec.  4152;  Rules,  Sec.  31. 

ei  Code,   Sec.    4150;     Rules,   Sec.  64  Root  v.  Heil,  78-436;  Simonson 

12;   Geyer  v.  Douglass,  85-93;    see  v.  C.,  R.  I.  &  P.  R.  Co.,  48-19;  Lewis 

Barney  v.  Barney,  14-189;  Kinney  v.  Tilton,  62-100;  Price  v.  Baldaref, 

v.  Kinney,  63  N.  W.,  452.  90-205;    Faucher  v.  Grass,   60-505; 

62  Code, '  Sec.    4151;     Rules,   Sec.  Gresham  v.  Chantry,  69-728;  Long 

30;      West    v.    Fitzgerald,  .72-306;  v.  Smith,  67-22;  West  v.  Fitzgerald, 

Trulock  v.  Friendship  Lodge,  etc.,  72-306. 

75-381;  Chicago,  R.  I.  &  P.  R.  Co.  er,  Stanley  v.  Davenport,  54-463; 

v.  Dey,  76-278.  Trulcck  v.  Friendship  Lodge  K.  P., 


§  1348.]  APPELLATE   PPtOCEEDINGS.  589 

§  1348.  Of  affirmance  of  cases  in  the  supreme 
court. — At  the  commencement  of  each  term  all  the  causes 
included  in  the  assignment  will  be  called  in  their  order, 
but  no  case  will  be  submitted  on  first  call  if  any  party 
object  thereto.66  The  court  will  hear  all  causes  included 
in  the  assignment,  and  take  submissions  thereof  in  the 
order  in  which  they  are  assigned,  excepting  those  which 
have  been  continued  or  otherwise  disposed  of  by  direc- 
tion of  the  court.67  The  supreme  court  may  reverse, 
modify  or  affirm  the  judgment,  decree  or  order  appealed 
from,  or  may  render  such  judgment  or  order  as  the  in- 
ferior court  should  have  done,  according  as  it  may  think 
proper.68  A  party  may  urge  new  reasons  in  support  of 
his  points  in  the  supreme  court,  and  such  court  may 
affirm  the  judgment  on  other  grounds  than  those  on 
which  the  court  below  acted.69 

The  supreme  court,  when  it  affirms  a  judgment,  must 
also,  if  the  appellee  asks  or  moves  therefor,  render  judg- 
ment against  the  appellant 'and  his  sureties  on  appeal 
bond  for  the  amount  of  the  judgment,  damages  and  costs 
referred  to  therein,  in  case  such  damages  can  be  ac- 
curately known  to  the  court  without  an  issue  and  trial.70 
Upon  the  affirmance  of  any  judgment  or  order  for  the 
payment  of  money,  the  collection  of  which,  in  whole  or  in 
part,  has  been  stayed  by  an  appeal  bond,  the  court  may 
award  to  the  appellee  damages  upon  the  amount  so 
stayed,  and,  if  satisfied  by  the  record  that  the  appeal  was 
taken  for  delay  only,  may  award  as  damages,  not  exceed- 
ing fifteen  per  cent,  thereon.71  If  the  supreme  court  af- 
firm the  judgment  or  order,  it  may  send  the  cause  to  the 
district  court  to  have  the  same  carried  into  effect,  or  it 
may  itself  issue  the  necessary  process  for  the  purpose, 

<U 

75-381 ;.  Chicago,  R.  I.  &  P.  R.  Co.  TO  Rules,     Sec.    50;     Code,     Sec. 

v.  Dey,  76-278.  4140;   Swift  v.  Conboy,  12-444;   see 

ee  Code,  Sec.  4139;  Rules,  Sec.  44.  Cole  v.  Edwards,  93-477. 

67  Code,  Sec.  4139;  Rules,  Sec.  44.  ?i  Rules,     Sec.     51;     Code,     Sec. 

es  Code,  Sec.  4139;  Rules,  Sec.  45.  4141;    Berryhill  v.   Keilmeyer,   33- 

«9Bond  v.  Wabash,  St.  L.  &  P.  20;   Ragan  v.  Day,  46-239;   Brans- 

R.  Co.,  67-712;  Richman  v.  Board,  combe  v.  Gillian,  55-235. 
etc.,  70-627. 


590  APPELLATE    PEOCEEDIXGS.  [§  13-18. 

and  direct  such  process  to  the  sheriff  of  the  proper  coun- 
ty, according  as  the  party  thereto  may  require.72  If,  by 
the  decision  of  the  supreme  court,  the  appellant  becomes 
entitled  to  a  restoration  of  any  part  of  the  money  or 
property  that  was  taken  from  him  by  means  of  such  judg- 
ment or  order,  either  the  supreme  court  or  the  court  be- 
low may  direct  execution  or  writ  of  restitution  to  issue 
for  the  purpose  of  restoring  to  him  his  property,  or  its 
value.73  Where  the  judgment  of  the  court  below  is  cor- 
rect it  will  be  affirmed,  though  the  reasons  given  be  er- 
roneous.74 The  only  grounds  on  which  a  case  can  be 
affirmed  are  those  on  which  the  appeal  is  taken.75  The 
affirmance  of  a  general  judgment  is  an  affirmance  with 
respect  to  all  the  issues  decided  thereby,  although  the 
opinion  is  based  only  on  one  of  such  issues,76  and  where 
the  judgment  is  entire,  it  will  be  affirmed  or  reversed  as 
to  all  the  parties  appealing.77  When  a  demurrer  was 
submitted  without  stipulation  for  either  party  to  amend 
or  plead  over,  and  the  action  of  the  court  in  overruling 
the  demurrer  was  excepted  to,  and  judgment  entered 
for  the  other  party,  it  was  held  that  an  affirmance  of  the 
ruling  on  the  demurrer  was  final.78  When  special  find- 
ings were  inconsistent  with  the  general,  verdict,  in  so  far 
as  the  latter  included  an  allowance  on  one  count  of  the 
petition,  it  was  held  the  court  could  modify  the  judg- 
ment by  striking  therefrom  the  amount  allowed  on  that 
count  and  affirm  it  as  to  the  balance.79  To  entitle  the 
appellee  to  an  affirmance  in  the  supreme  court,  he  must 
file  a  certified  transcript  of  the  judgment,  but  he  need 

TZ  Rules,  Sec.  55;  Code,  Sec.  4143.  den,  70-612;  Wise  v.  Wilds,  77-586; 

73  Rules,     Sec.    57;      Code,    Sec.  Arnold  v.  Wilds,  77-593. 

4145;  Hanschild  v.  Stafford,  27-301;  75  Collins  v.  Brazill,  63-432;   see 

Lombard  v.  Atwater,  46-501;  Mun-  Dist.  Twp.  v.  Ind.  Dist.,  63-188. 

son  v.  Pluinmer,  58-736;    Zimmer-  ™  Finch  v.  Hollinger,  46-216. 

man    v.    National    Bank,    56-133;  "  Cavender  v.  Smith's  Heirs,  5- 

Fort  Madison  Lumber  Co.  v.   Ba-  157. 

tavian  Bank,  77-393;  see  Weaver  v.  ?s  Grimes   v.    Hamilton    County, 

Stacey,  93-683.  37-290;     Dunlap    v.    Cody,  31-260; 

™  Whiting  v.  Root,  52-292;  Jam-  Tyler  v.  Langworthy,  37-555. 

ison  v.  Perry,  38-14;  Hoag  v.  Mad-  79  Cobb  v.  Illinois  C.  R.  Co.,  38- 

601. 


§  1349.]  APPELLATE  PKOCEED1NGS.  591 

not  do  so  in  cases  where  affirmance  is  sought  because  the 
printed  abstract  is  not  filed.80 

§  1349.  Of  reversal  of  cases  in  the  supreme  court. 
— One  against  whom  no  judgment  has  been  rendered  in 
the  court  below  can  not  question  the  correctness  of  the 
proceedings  in  the  lower  court,  and  if  the  judgment  is  re- 
versed, so  far  as  it  is  in  his  favor,  he  should  not  be  bound 
thereby,  so  far  as  the  proceedings  are  adverse  to  him,  but 
should  be  given  an  opportunity  for  a  new  trial.81 

When  a  judgment  contains  two  adjudications,  one  in 
favor  of  a  party  and  one  against  him,  and  he  appeals  from 
the  entire  judgment,  it  will  be  presumed  he  appeals  from 
that  portion  adverse  to  him,  and  in  such  case  the  judg- 
ment will  not  be  interfered  with  in  behalf  of  the  party 
not  appealing.82  If  the  error  is  committed  as  to  only  one 
of  two  counts  upon  which  plaintiff  recovered,  but  it  does 
not  clearly  appear  as  to  the  amount  recovered  on  each 
count,  the  entire  judgment  will  be  reversed.83 

It  is  only  when  the  facts  are  settled  by  agreement  of 
the  parties,  or  by  the  finding  of  a  court  or  referee,  or  by 
the  special  verdict  of  a  jury,  that,  upon  reversal  in  the 
supreme  court  in  an  action  triable  by  ordinary  proceed- 
ings, it  can  render  final  judgment  for  the  party  unsuc- 
cessful in  the  lower  court;  in  other  cases  a  new  trial 
must  be  awarded.84  And  when  the  facts  are  not  thus  de- 
termined, and  the  cause  is  reversed  and  remanded  to  the 
lower  ^ourt,  judgment  should  not  be  rendered  in  such 
court  without  a  re-trial.85  The  supreme  court  can  not 
render  a  final  judgment  in  reversing  a  case  on  the  ground 
that  a  new  trial  should  have  been  granted,86  nor  when 
the  case  is  reversed  for  error  in  the  refusal  to  admit  testi- 

so  Hunger  v.   Patterson,    37-501;  38-293;     Gray    v.     Regan,    37-688; 

but  see  Rules  28,  29  and  37.  Harwood   v.    Case,    37-692;    In    re 

si  Boyce  v.  Wabash  R.  Co.,  63-70.  Bresee,  82-573;  but  see  Union  Mer. 

sa  Hintrager    v,    Hennessey,    46-  Co.  v.  Chandler,  90-650. 

600.  ss  Harwood  v.  Case,  37-692;  Gray 

ss  S.  C.  &  P.  R.  Co.  v.  Walker,  v.  Regan,  37-688;   see  Union  Mer. 

49-273;  Bond  v.  W.,  St.  L.  &  P.  R.  Co.  v.  Chandler,  90-650. 

Co.,  67-712;  see  Nevada  v.  Hutch-  so  Payne  v.  C.,  R.  I.  &  P.  R.  Co., 

ins,  59-506.  47-605. 

84  Artz  v.  C.,  R.  I.  &  P.  R.  Co., 


592  APPELLATE  PROCEEDINGS.  [§  1349. 

mony.87  When  the  defendant  has  not  had  an  opportun- 
ity to  defend  in  the  court  below,  as  in  the  case  of  default 
upon  service  by  publication,  the  appellate  court,  in  re- 
versing the  action  of  the  lower  court,  can  only  remand 
the  case  for  the  purpose  of  allowing  a  defense  to  be  made 
in  the  lo\\  er  court.88  Where  defendant  in  the  lower 
court  stands  on  his  demurrer,  which  is  overruled,  and  he 
appeals,  and  the  ruling  is  reversed,  he  can  not  have 
judgment  in  the  supreme  court,  but  the  case  must  be  re- 
manded, with  leave  to  the  plaintiff  to  amend.89 

The  reversal  on  appeal  of  an  order  directing  the  issu- 
ance of  a  writ  of  possession,  on  the  ground  that  it  is 
irregular  merely,  will  not  entitle  the  adverse  party  on 
motion  to  an  order  for  a  writ  of  restitution.90  If  a  judg- 
ment upon  a  special  verdict  is  reversed  on  an  error  of  the 
lower  court,  the  supreme  court  may  render  such  a  judg- 
ment as  should  have  been  rendered  in  the  lower  court.91 
If  the  judgment  is  reversed  on  the  ground  that  upon  the 
finding  of  facts  made  by  the  court,  the  judgment  is  er- 
roneous as  a  matter  of  law,  final  judgment  may  be  ren- 
dered in  the  supreme  court,  but  it  may  remand  the  cause 
for  the  entry  of  such  judgment  in  the  trial  court.92  But 
final  judgment  can  not  be  rendered  in  the  supreme  court 
when  one  has  sued  under  a  statute  authorizing  the  re- 
covery of  treble  damages,  and  judgment  has  been  ren- 
dered in  his  favor,  which  is  held  erroneous  on  appeal.93 

When  a  judgment  is  reversed  because  the  verdict  is  in- 
consistent with  the  instructions  of  the  court  and  the 
special  findings,  the  supreme  court  will  not  render  judg- 
ment on  the  special  findings  but  will  remand  the  case.94 

When  the  judgment  will  affect  title  to  real  estate,  the 
case  will  be  remanded  to  the  lower  court  for  judgment.95 

ST  Mendel  v.  C.  &  N.  W.  R.  Co.,  Roberts  v.  Corbin,  28-355;  Drafahl 

20-9.  v.  Tuttle,  42-177. 

ss  Doolittle  v.  Shelton,  1  G.  Gr.,  ^  Bond  v.  Wabash,  St.  L.  &  P. 

272.  R.  Co.,  67-712. 

89  Ware  v.  Thompson,  29-65.  °*  Baird  v.  C.,  R.  I.  &  P.  R.  Co., 

soLombach  v.  Atwater,  46-501.  55-121,  and  61-359. 

»i  Gilmore  v.  Ferguson,  28-422.  *>$  Hart  v.  Ensign,  61-724. 

»2  Shaw    v.    Nachtwey,     43-653; 


§  1350.]  APPELLATE  PKOCEEDIXGS.  593 

If  final  judgment  is  rendered  in  the  supreme  court  on  ap- 
peal, it  is  the  judgment  of  that  court  which  constitutes 
the  final  adjudication  of  the  cause,  and  not  the  judgment 
of  the  court  below.90  And  when  the  supreme  court  has? 
reversed  the  case  and  remanded  it  for  a  new  trial,  it  will 
not,  at  a  subsequent  term,  on  motion,  affirm  a  judgment 
rendered  in  favor  of  the  appellant.97  The  supreme  court 
has  power,  even  aside  from  statutory  provision,  to  cor- 
rect or  cancel  judgments  improperly  entered  through 
mistake  or  oversight.98 

o 

§  1350.  Of  the  effect  of  judgment  in  supreme 
court  and  of  remitting  part  of  judgment,  etc. — If  the 
appellee  takes  a  new  judgment  in  the  supreme  court 
against  the  appellant  and  his  sureties  on  the  appeal  bond, 
it  is  a  merger  of  the  former  judgment.99  If  there  is  no 
money  judgment  in  the  court  below  there  can  be  none 
rendered  in  the  supreme  court  on  the  appeal  bond.1  It 
is  held  that  where  usury  is  pleaded,  that  on  appeal  plain- 
tiff might  remit  the  usury  and  that  judgment  might  be 
rendered  in  the  supreme  court  for  plaintiff  for  the  prin- 
cipal and  for  the  school  fund  for  such  usury.2  Wh^n 
plaintiff,  in  an  action  to  recover  damages  in  the  lower 
court  for  injury  to  his  stock  killed  on  defendant's  rail- 
road, recovered  double  damages  in  the  lower  court,  but 
on  appeal  it  was  held  that  he  was  only  entitled  to  single 
damages,  a  judgment  might  be  rendered  for  him  for 
such  damages  in  the  appellate  court,  he  to  pay  the  costs 
of  appeal.3  And  a  judgment  may  be  modified  when  ex- 
cessive if  a  party  consents  thereto.4  So,  in  some  cases 
when  the  appellant  offers  to  remit  an  erroneous  excess  of 
a  judgment,  judgment  will  be  rendered  in  the  appellate 
court  for  the  proper  amount.5  When  the  supreme  court 

96  Griffin  v.  Seymour,  15-30.  s  Keyser  v.   K.   C.,   St    J    &   C. 

97  Roberts  v.  Corbin,  26-315.  B.  R.  Co.,  56-440. 

98  Drake  v.  Smythe,  44-410.  *  Pelley  v.  Walker,  79-142. 

99  Swift  v.  Conboy,  12-444.  s  Bayless    v.    Hennessey,    54-11; 

1  Berryhill    v.   Keilneyer,   33-20;  Sanney    v.    I.    C.    G.    Co.,    68-542; 
Branscomb  v.  Gillian,  55-235;    see  Payne  v.  Billingham,  10-360;  Mou- 
Ragan  v.  Day,  46-239.  telins  v.  Wood,  56-254;  Gere  v.  C. 

2  Thompson   v.    Purnell,   10-205;  B.  Ins.  Co.,  67-272;  Brentner  v.  C., 
see  Hyde  v.  M.  L.  Co.,  53-243.  M.    &   St.    P.   R.    Co.,    68-530;    see 

Vol.  n—38 


594  APPELLATE    PROCEEDINGS.  [§§1351,    1352. 

deems  the  amount  of  the  verdict  excessive  it  will,  on  ap- 
peal, reduce  it.6 

§  1351.    Of  the  effect  of  a  prior  decision  on  a  sec- 

*  ond  appeal. — A  decision  on  appeal  constitutes  the  law  of 

the  case  and  will  not,  on  a  subsequent  appeal  of  the  same 

case,  be  overruled  or  re-examined,  unless  the  issues  have 

been  changed.7 

§  1352.  Of  proceedings  in  the  lower  court  after  a 
cause  is  reversed  and  remanded. — After  a  cause  is  re- 
versed with  directions  that  a  certain  judgment  be  en- 
tered, no  fact  existing  prior  to  the  first  trial  can  be  inter- 
posed against  the  entry  of  such  judgment.8  If  a  case  is 
reversed  because  the  court  below  erred  in  overruling  a 
motion  to  strike  depositions  from  the  files,  and  the  cause 
is  remanded,  the  lower  court  must  try  the  case  again.9 
But  when  the  case  is  reversed  on  one  point,  other  points 
passed  on  by  the  supreme  court  will  in  some  cases  be  re- 
garded as  finally  determined  by  the  appeal.10  But  if  the 
action  of  the  court  below  in  overruling  a  motion  for  a 
new  trial  is  reversed,  the  lower  court  must  proceed  to  try 
the  case,  if  anything  is  left  to  try.11  If  the  reversal  is  for 
error  of  law  in  entering  judgment  on  a  finding  of  facts,  and 
the  case  is  remanded,  judgment  should  be  entered  in  the 
trial  court  at  once.12  But  such  is  not  the  rule  where  a 
motion  for  a  verdict  on  the  evidence  is  overruled  in  the 
lower  court  and  such  ruling  is  reversed  in  the  appellate 

Howe  v.  Sutherland,  39-484;  Wag-  &  P.  R.  Co.,  70-59;  Davis  v  Curtis 

goner  v.  Turner,  69-127;  Cooper  v.  70-398;  M.  L.  0.  Co.  v.  Montague' 

Mills  County,  69-350;   Kaufman  v.  65-67;    Lewis    v.    Burlington    Ins' 

Dostal,  73-691.  Co.,   80-259;    Heffner  v.   Brownell 

e  McKinley  v.  C.  &  N.  W.  R.  Co.,  75-341;   Burlington,  C    R    &  N    R 

44-314;  Lombard  v.  C.,  R.  I.  &  P.  Co.  v.  Dey,  89-13;   Larkin  v.  Bur- 

R.  Co.,   47-494;    Noel   v.   Dubuque,  lington,  C.  R.  &  N.  R.  Co.,  91-654; 

B.  &  M.  R.  Co.,  44-293;    Small  v.  Garrettson  v.  Merchants  &  Bank- 

C.,  R.  I.  &  P.  R.  Co.,  55-582;  Dick-  ers  Ins.  Co.,  92-293;  Smith  v    Fos- 

ey  v.  Harmon,  26-501.  ter,  85-705. 

7  Adams  v.  B.  &  M.  R.  Co.,  55-  s  Lord  v.  Ellis,  11-170. 

94;    Barton  v.  Thompson,    56-571;  »  Kershman  v.  Swehla,  62-654 

Simplot  v.   Dubuque,  56-639;    Star  10  Croup  v.  Morton,  53-599. 

Wagon  Co.  v.  Swezey,  63-520;  Ellis  n  Pomroy    v.    Parmlee      10-154- 

v.  State  Ins.  Co.,  68-578;  Dist.  Twp.  Dryden  v.  Wyllis,  53-390.' 

v.  Ind.  Dist.,  69-88;  Raridan  v.  C.  12  Roberts  v.  Corbin  28-355-  Dre- 

I.  R.  Co.,  69-527;  Drake  v.  C.,  R.  I.  fahl  v.  Tuttle,  42-177. 


§  1353.]  APPELLATE  PROCEEDINGS.  595 

court,  in  such  case  further  evidence  may  be  introduced.13 
The  court  below  on  the  filing  of  a  procedendo  directing 
it  to  enter  judgment  in  accordance  with  its  opinion  must 
proceed  to  enter  such  judgment  irrespective  of  notice  to 
the  adverse  party  or  his  intention  to  file  a  petition  for  a 
rehearing.14  If,  after  the  judgment  of  the  supreme  court, 
there  is  nothing  left  for  the  court  below  to  act  upon,  the 
case  therein  should  be  dismissed,15  or  a  judgment  entered 
as  may  be  proper  under  the  facts  and  in  such  a  case  an- 
other trial  is  not  necessary.16  The  fact  that  a  case  is  re- 
manded does  not  prevent  the  granting  of  additional  re- 
lief, but  parties  will  not  be  permitted  to  plead  a  new 
cause  of  action.17  The  reversal  on  appeal  of  a  cause  in 
which  a  motion  for  change  of  venue  has  been  overruled 
will  not  necessitate  a  re-trial  of  the  motion  for  a  change 
of  venue  where  the  ruling  thereon  was  correct.18  When 
the  appellate  court  remands  a  cause  to  be  carried  into 
effect  by  the  court  below,  such  decision  and  the  order  of 
the  court  being  certified  thereto,  and  entered  on  the  rec- 
ords of  the  court  below,  has  the  same  force  and  effect  as 
if  made  and  entered  during  the  session  of  such  lower 
court.19  See  cases  cited  below.20 

A  cause  may  be  remanded  for  a  new  trial  as  to  a  cross- 
action  alone.21 

§  1353.  Of  power  of  supreme  court  and  of  execu- 
tions therefrom— Restoration  of  property. — The  su- 
preme court  has  power  to  prescribe  rules  for  allowing 
appeals,  on  such  other  intermediate  orders  and  decisions 
as  are  expedient,  and  for  permitting  the  same  to  be  taken 
and  tried  during  the  progress  of  the  trial  in  the  court  be- 
low; but  such  intermediate  appeals  must  not  retard  pro- 
is  Meadows  v.  Hawkeye  Ins.  Co.,  "  Leech  v.  Germania  Building 
67-57.  Ass'n,  70  N.  W.,  1090. 

n  Fenton  v.  Way,  44-438.  is  Stevens  v.  Ellsworth,  64  N.  W., 

is  Edgar  v.  Greer,  14-211.  668. 

is  City  Bank  v.  Radtke,   92-207;          "Code,  Sec.  4144;  Rules,  Sec.  56. 
Howe  v.  Jones,  71-92;    Garmor  v.          20  Miller  v.  Corbin,  48-525;  Bates 
Windle,  76-239;  Lombard  v.  Greg-      v.  Kemp,  13-223. 
ory,  88-431.  21  McAfferty  v.  Hale,   24-355. 


596  APPELLATE    PROCEEDINGS.  [§  1333. 

ceedings  in  the  trial  in  chief  in  the  court  below.22  And 
it  has  power  to  enforce  its  mandates  upon  inferior  courts 
and  officers  by  fine  and  imprisonment,  which  imprison- 
ment may  continue  until  the  mandates  are  obeyed.23 
And  it  may  issue  all  writs  and  processes  necessary  for 
the  exercise  and  enforcement  of  its  appellate  jurisdic- 
tion.24 Executions  issued  from  the  supreme  court  shall 
be  the  same  as  those  from  the  district  court,  attended 
with  the  same  consequences,  and  returnable  in  the  same 
time.25  In  cases  in  which  the  judgment  below  is  af- 
firmed in  the  supreme  court,  the  party  in  whose  favor 
judgment  is  affirmed  may  have  execution  either  from 
the  supreme  court  or  the  court  below.  In  case 
of  an  execution  from  the  supreme  court,  if  the 
process  of  garnishment  is  served  upon  the  exe- 
cution defendant,  either  principal  or  surety,  the  sher- 
iff, in  addition  to  his  return,  must  return  a  copy  of 
the  execution  and  his  returns  to  the  district  or  superior 
court  from  which  the  cause  was  appealed,  and  all  issues 
of  fact  which  may  arise  in  such  garnishment  process, 
must  be  tried  by  that  court.26  The  court  may  require 
the  appellants  to  give  security  for  costs  under  the  same 
circumstances  and  upon  the  same  showing  as  plaintiffs 
in  civil  actions  in  the  court  below.27 

Where  an  execution  has  been  issued  from  the  supreme 
court,  and  a  levy  on  real  property  made  under  it,  the 
district  court  of  the  county  in  which  the  levy  is  made 
may  enjoin  the  sale  of  the  land  levied  on.28  Restoration 
of  property  taken  under  a  judgment  appealed  from  can 
not,  in  case  of  reversal,  be  given  as  a  summary  remedy 
when  such  property  has,  by  voluntary  sale,  or  by  seizure 
and  sale,  passed  to  an  innocent  purchaser,  or  has  in  the 
bona  fide  discharge  of  a  trust  pursuant  to  an  order  of  the 
court  been  turned  over  to  another.29  But  where  a  judg- 

22  Code,  Sec.  4103;    Rules,  Sees.  2-  Code,    Sec.    4135;    Rules,    Sec. 
3,  6.  93. 

23  Code,  Sec.  4147;  Rules,  Sec.  7.  23  Davis  v.  Bonar,  15-171;  Massie 

24  Code,  Sec.  4109;  Rules,  Sec.  6.  v.  Mann,  17-131. 

25  Code,  Sec.  4153;  Rules,  Sec.  58.  20  Hanschild  v.  Stafford,  27-301; 

26  Rules,  Sec.  59.  see  Munson  v.  Plummer,  58-736. 


§  1354.]  APPELLATE  PROCEEDINGS. 

ment  under  which  the  successful  party  has  acted  is  re- 
versed, it  is  his  legal  duty  to  restore  to  the  other  party 
all  the  property,  or  its  value,  taken  under  the  judgment, 
and,  on  a  failure  to  do  so,  action  may  be  brought  against 
him  therefor  without  making  a  demand.30 

A  purchase  at  sheriff's  sale  by  the  plaintiff  in  execu- 
tion, or  his  attorney,  with  actual  knowledge  of  a  pending 
appeal,  is  at  the  peril  of  such  purchaser,31  nor  will  one  be 
protected  who  purchases  at  such  a  sale  and  has  not  paid 
the  consideration.32  The  statute  authorizes  the  su- 
preme court,  or  the  court  below,  to  direct  execution  or  a 
writ  of  restitution  to  issue  to  restore  to  appellant  the 
property  or  its  value  which  he  may  be  entitled  to  by 
reason  of  the  decision  of  the  supreme  court,  and  which 
was  taken  from  him  by  the  judgment  or  order  of  the  lowr- 
er  court,33  and  property  acquired  by  a  purchaser  in  good 
faith,  under  a  judgment  subsequently  reversed,  will  not 
be  affected  by  such  reversal.34  But  the  provisions  of  the 
law  for  the  protection  of  purchasers  at  judicial  sales  as 
against  subsequent  reversals  of  the  judgment  are  not  de- 
signed for  parties  claiming  under  a  distinct  title.35  If  a 
judgment  creditor  purchase  before  notice  of  appeal,  and 
he  again  recovers  in  another  trial,  his  title  will  not  be 
affected.36  And  when  plaintiff,  in  an  action  to  ascer- 
tain wrhich  of  two  persons  was  entitled  to  certain  money 
due  on  real  property,  paid  it  into  court,  and  it  was  paid 
over  to  one  defendant  on  an  adjudication  of  the  court, 
and  on  an  appeal  by  the  other  defendant  it  was  adjudged 
to  belong  to  him,  he  could  not  recover  it  from  the  plain- 
tiff,37 and  see.38 

§  1354.  Of  opinions  of  the  court — Rules. — At  the 
commencement  of  each  term  the  causes  will  be  called  in 

so  Zimmerman  v.   Nat.    Bk.,    56-  34  Code,    Sec.    4146;    O'Brien    v. 

133.  Harrison,  59-686. 

31  Twogood  v.   Franklin,  27-239.  35  Wood  v.  Young,  38-102. 

32  O'Brien  v.  Harrison,  59-686.  se  Frazier  v.  Crafts,  40-110. 

33  Code,  Sec.  4145;  Rule,  Sec.  57;  37  White  v.'Butt,  32-335. 
Ft.  Madison  Lumber  Co.  v.  Batav-  ss  Davis  v.  Bonar,  15-171. 
ian  Bank,  77-393;  Weaver  v.  Stacy, 

93-683. 


598  APPELLATE  PROCEEDINGS.  [§  1354. 

their  order,  but  no  cause  will  be  submitted  on  the  first 
call  if  an}'  party  object  thereto.39  The  court  will  hear  all 
cases  docketed  when  not  continued  by  consent  or  for 
cause  shown  by  the  party  unless  otherwise  directed  by 
the  court  or  the  judges  thereof,  and  the  party  may  be 
heard  orally  or  otherwise,  in  his  discretion.40 

No  cause  is  decided  until  a  decision  in  writing  is  filed 
with  the  clerk.41  The  decisions  of  the  court  on  all  ques- 
tions passed  upon  by  it,  including  motions  and  points  of 
practice,  shall  be  specifically  stated,  and  shall  be  ac- 
companied by  an  opinion  upon  all  such  matters  as  are 
deemed  of  sufficient  importance,  together  with  any  dis- 
sent therefrom,  which  dissent  may  be  stated  with  or 
without  an  opinion;  and  all  decisions  and  opinions,  in- 
cluding dissents,  shall  be  in  writing  and  be  filed  with 
the  clerk  except  rulings  on  motions  which  may  be  en- 
tered upon  the  announcement  book. 

If  the  decision  is  not  accompanied  with  an  opinion, 
it  shall  briefly  state  the  title  of  the  case,  the  county  from 
which  the  case  was  appealed,  and  the  name  of  the  pre- 
siding judge,  the  nature  of  the  action,  the  names  of  coun- 
sel appearing  on  either  side,  and  the  conclusions  reached. 

When  the  court  is  equally  divided  in  opinion  the  judg- 
ment of  the  court  below  will  stand  affirmed,  but  the  de- 
cision is  of  no  further  force  or  authority.  In  case  of 
such  division,  opinions  may  be  filed  at  the  option  of  the 
court.  If  no  opinion  is  filed  a  written  announcement 
must  be  made  of  the  division  of  the  court  upon  the  ques- 
tions presented,  and  that  the  judgment  is  affirmed  by  op- 
eration of  law. 

The  records  and  reports  must  in  all  cases  show  whether 
the  decision  was  made  by  a  full  bench,  and  whether 
either,  and  if  so,  which  of  the  judges  dissented  from  the 
decision.42 

If  a  case  is  reversed  upon  errors  in  instructions  and 

8»  Rules,  Sec.  44.  42  Code,    Sees.    198,    199;    Rules, 

40  Code,  Sec.  4139;  Rules,  Sec.  44.      Sees.  46,  47  and  48. 

41  Code,  Sec.  4139;  Rules,  Sec.  46. 


§§  1355,  1356.]     APPELLATE  PEOCEEDLNGS.  599 

sent  back  for  a  new  trial,  the  court  will  not  express  its 
opinion  as  to  errors  claimed  to  have  been  made  in  the 
admission  or  exclusion  of  evidence.43  The  rules  of  prac- 
tice in  the  supreme  court  will  be  framed  and  interpreted 
with  a  view  to  the  submission  of  causes  on  their  merits,44 
and  such  rules  have  the  force  and  effect  of  laws  duly  en- 
acted.45 

§  1355.  Cases  where  no  motion  for  a  new  trial  is 
necessary,  etc. — The  supreme  court  will  review  any  of 
the  orders  from  which  the  law  allows  an  appeal  to  be 
taken,  if  excepted  to  at  the  time,  without  a  motion  for 
a  new  trial  being  made  on  that  ground  in  the  court  be- 
low.46 A  mistake  of  the  clerk  will  not  be  ground  for  an 
appeal  until  the  same  has  been  presented  and  acted  upon 
by  the  court  below.47  A  judgment  or  order  will  not  be  re- 
versed for  an  error  which  can  be  corrected  on  motion  in 
an  inferior  court,  until  such  motion  has  been  made  and 
there  overruled.48 

§  1356.  Of  the  lien  of  the  judgment  of  the  su- 
preme court,  etc. — When  a  judgment  is  affirmed  in  the 
supreme  court,  and  a  procedendo  issues,  the  lien  of  the 
judgment  on  real  estate  attaches  and  continues  from 
the  date  on  which  the  judgment  was  rendered  in  the 
court  below;  but  when  a  judgment  is  rendered  in  the  ap- 
pellate court  against  the  appellant  and  the  sureties  on 

«  Gould  v.  C.,  B.  &  Q.  R.   Co.,  Vandebur,    50-651;    Ottumwa    Sav. 

66-590;  see  Baker  v.  Kerr,  13-384.  Bk.  v.  Ottumwa,  63  N.  W.,  672;  Wil- 

44  Palo  Alto  County  v.  Harrison,  son  v.  Riddick,  69  N.  W.,  1039;  Bull 
68-81;  Poole  v.  Seney,  70-275.  v.  Keenan,  69  N.  W.,433;  Shelley  v. 

45  State  v.  O'Day,  68-213.  Smith,  66  N.  W.,  172;  Weis  v.  Mor- 
40  Rindskoff  v.    Lyman,    16-260;       ris,    71    N.    W.,    208;    Richman    v. 

Code,    Sec.   4106;     see     Code,   Sec.  Board,  etc.,  70-627;  Kirk  v.  Litter- 

4107;  Brown  v.  Rosie,  55-734;  Doe-  est,  71-71;   Rising  v.  Teabout,  73- 

fahl    v.    Tuttle,    42-177;    Beems    v.  419;    British-American  Ins.   Co.  v. 

Chicago,  R.  I.  &  P.  R.  Co.,  58-150;  Neil,  76-645;'  Gray  v.  Wolf,  77-630; 

Hunt  v.  Iowa  Cent.  R.  Co.,  86-15;  Ash  v.  Scott,  76-27;  Fish  v.  Chica- 

Kaufman  v.   Farley  Mfg.  Co.,  78-  go,  R.  I.  &  P.  R.  Co.,  81-280;  Rey- 

679.  nolds  v.   Iowa  &  N.   Ins.   Co.,  80- 

47  Code,  Sec.  4104.  563;     Yan'cey    v.    Tatlock,    93-386; 

48  Code,    Sec.    4105;     Garvin    v.  Ketchum  v.  Larkin,  88-215;  Cox  v. 
Cannon,  53-716;    Smith  v.  Warren  Mason   City  &  Ft.   D.   R.  Co.,  77- 
County,  49-336;  Black  v.  Boyd,  52-  20;  Allen  v.  Seaward,  86-718;  Snell 
719;    Dickey    v.    Harmon,    26-501;  v.  Dubuque  &  S.  C.  R.  Co.,  88-442: 
Finch  v.  Billings,  22-228;  Keller  v.  Sayles  v.  Delubrey,  64-109;  Shipley 
Jackson,    58-629;     Carmichael     v.  v.  Reasoner,  80-548. 


COO  APPELLATE  PROCEEDINGS.  [§  1357. 

the  supersedeas  bond,  the  judgment  of  the  court  below 
is  merged  therein  and  the  lien  thereof  discharged;  and  in 
such  case  the  lien  of  the  judgment  in  the  supreme  court 
dates  from  the  time  of  its  rendition  only.49  The  effect  of 
the  appeal  is  to  deprive  the  lower  court  of  jurisdiction 
over  the  case.50 

§  1357,  Of  the  procedendo  —  Of  decrees,  with- 
drawing papers. — The  procedendo  may  be  in  the  follow- 
ing form: 


FORM  OF  PROCEDENDO. 


State  of  Iowa, 
—  County 


.1 


The  State  of  Iowa,  to  the  district  court  in  and  for county. 

Whereas  the  supreme  court  of  said  State  being  lately  certified  of  the 
record  and  proceedings  in  a  certain  cause  which  was  in  the  district  court 

of  the  county  of aforesaid,  wherein was  plaintiff  and  — 

was  defendant,  from  which  judgment  so  rendered  the  said  defendant  ap- 
pealed to  the  said  supreme  court  of  Iowa,  and  said  court  having  duly 
examined  the  record  and  proceedings  aforesaid  in  the  premises,  on  the- 

—  day  of ,  18 — ,  did  affirm  the  judgment  aforesaid,  as  rendered 

by  the  court  below. 

You  are  hereby  commanded,  that  with  the  speed  which  of  right  and 
according  to  law  you  may,  you  proceed  in  the  same  manner  as  if  no 
appeal  had  been  taken  to  and  prosecuted  in  this  court,  anything  in  the 
record  or  proceedings  aforesaid  heretofore  certified  to  the  contrary,  not- 
withstanding. 

Witness  ,  clerk  of  the  said  supreme  court,  with  the  seal  of 

court  hereto  affixed,  at  Des  Moines,  this day  of ,  18 — . 

[Seal.]  ,  clerk,  etc. 

No  procedendo,  except  in  criminal  cases,  and  in  cases 
where  petitions  for  rehearing  have  been  overruled,  will 
issue  in  any  case  until  the  expiration  of  thirty  days  from 
the  filing  of  the  opinion  in  the  case,  except  upon  order  of 
one  of  the  judges  of  the  court,  upon  cause  shown.51  A 
procedendo  is  not  necessary  to  authorize  the  court  below 
to  redocket  and  proceed  with  the  case  in  a  proper  man- 
ner, which  may  be  done  on  proper  notice  to  the  adverse 
party,  at  any  time  after  the  time  for  rehearing  has  ex- 

4»  Code,  Sees.  3801,  4128;  Swift  v.      Laughlin  v.  O'Rouke,  12-459. 
Conboy,  12-444.  BI  Rules,  Sec.   54. 

so  Levi  v.  Karrick,  15-444;    Me- 


§  1358.]  APPELLATE  PROCEEDINGS.  601 

pired.52  Decrees  to  be  entered  in  the  supreme  court 
must  be  prepared  by  the  attorney  of  the  parties  in  whose 
favor  they  are  rendered.  Copies  must  be  served  on  the 
opposite  attorney  and  filed  in  the  court  within  twenty 
days  after  the  attorney  preparing  them  shall  have  re- 
ceived notice  of  the  decision  in  the  cause  in  which  they 
are  entered.53  And  when,  by  the  decision  of  the  su- 
preme court,  a  decree  is  to  be  entered  in  such  court  at  the 
option  of  either  party,  such  option  must  be  declared  and 
a  decree  furnished  as  above  stated,  within  twenty  days 
from  the  date  at  which  the  attorney  required  to  prepare 
the  decree  received  notice  of  the  decision.54  If  a  new 
trial  is  granted,  the  clerk,  as  soon  as  the  cause  is  at  an 
end  in  the  supreme  court,  must  transmit  to  the  clerk  of 
the  court  below,  all  original  papers  or  exhibits  certified 
up  from  said  court;  if  a  new  trial  is  not  awarded,  or  if 
the  cause  is  triable  de  novo,  either  party  desiring  to  with- 
draw the  same  may,  by  motion,  showing  proper  grounds 
therefor,  and  upon  five  days'  notice  to  the  other  party,  or 
his  attorney,  secure  an  order  from  this  court  or  a  judge 
thereof,  allowing  him  to  do  so,  upon  filing  a  receipt  for 
the  same  with  the  clerk  of  this  court.55 

§  1358.  When  causes  will  be  tried  de  novo  in  the 
supreme  court. — A  cause  treated  as  an  equitable  one  in 
the  lower  court  will  be  so  treated  in  the  supreme  court.56 
And  all  equity  cases  tried  by  the  method  provided  by 
statute  must,  on  appeal,  be  tried  de  novo.57  Cases  held 
not  triable  de  novo.58  We  have  considered  elsewhere 
when  equity  cases  may  be  tried  on  errors  assigned,  in 

52  State  v.  Knouse,  33-365;  Beck-  »T  Blough  v.  Van  Hoorbeke,    48- 
er  v.  Becker,  50-139.  40;  Sherwood  v.  Sherwood,  44-192; 

53  Rules,  Sec.  52.  Chambers      v.      Ingham,     25-222; 

54  Rules,  Sec.  53.  Cooper  v.  Skell,  14-578;  Howe  Mch. 

55  Rules,  Sec.  92.  Co.  v.  Wooley,  50-549;   McClain  v. 
6«Hintrager    v.    Sumbafgo,    54-      McClain,  57-167;   First  Nat.  Bk.  v. 

604;  Balch  v.  Ashton,  54-123;  Man-  City  Council  of  Albia,  86-28. 

Chester  v.  Hoag,  66-649;  Fritzler  v.  ss  Bohull     v.     Neiwalt,     75-109; 

Robinson,  70-500;   Taylor  v.  Kier,  Yocum    v.   Haskins,   81-436;    Law- 

54-645;    Baldwin  v.  Davis,  63-231;  rence  v.  Thomas,  84-362;  Smith  v. 

Dove  v.  Ind.  Dist,  41-689;   Bryant  Knight,  77-540;   Chase  v.  Weston, 

v.  Fink,  75-516;  Frank  v.  Hollands,  75-159. 
81-164. 


602  APPELLATE  PROCEEDINGS.     [§§  1359,  13GO. 

case  the  proper  steps  have  not  been  taken  to  have  them 
tried  de  novo. 

§  1359.  Of  regulations  as  to  the  method  of  trial. 
—While  the  legislature  can  not  take  away  the  right  of 
trial  de  novo  on  appeal  in  equity  cases,  yet  it  may  regu- 
late the  manner  of  the  exercise  of  such  right.59  And 
when  a  divorce  case  was  not  tried  in  open  court  below,  it 
was  held  it  could  not  be  tried  de  novo  in  the  supreme 
court.60 

§  1360.  What  must  appear  of  record  to  warrant 
a  trial  de  novo. — The  evidence  offered,  as  well  as  that 
received,  must  all  be  embodied  in  the  record  in  order  to 
try  a  case  de  novo  in  the  supreme  court.61  If  it  is  not,  it 
will  be  presumed  the  action  of  the  court  below  was  cor- 
rect.62 Nor  will  it  be  sufficient  simply  to  set  out  in  the 
records  the  facts  found  by  the  court.63  And  if  there  is  a 
stipulation  as  to  the  facts,  it  must  appear  that  the  cause 
was,  in  fact,  tried  on  such  facts.64  A  trial  de  novo  will 
not,  however,  be  defeated  if  it  clearly  appears  from  the 
evidence  that  the  evidence  omitted  was  irrelevant  or  im- 
material.65 But  an  appellee  can  not  be  heard  to  object 
that  evidence  admitted  against  his  objection  is  not  con- 
tained in  the  abstract.60  We  have  omitted  a  reference 
to  the  decisions  under  prior  statutes  of  certain  steps 
formerly  necessary  to  insure  a  trial  de  novo,  as  they  are 

so  Richards  v.  Hintrager,  45-253;  Nat.  Bk.  v.  Ash,  85-74;  Carlton  v. 

Sisters  of  Visitation  v.   Glass,  45-  Brock,  91-710;  Wolrod  v.  Flanigan 

154;  Andrews  v.  Burdick,  62-714.  75-365;    Parks    v.    Garner,    77-154;' 

eo  Hobart  v.  Hobart,  45-501.  Peoria    Steam    Marble    Works    v. 

«i  Krappel  v.  Pfiffner,  24-176;  Linesenmeyer,  80-253;  Bailey  y' 
Maxwell  v.  Lundy,  19-576;  Van  Or-  Green,  80-616;  Shattuck  v.  Bur- 
man  v.  Spafford,  16-186;  Anderson  lington  Ins.  Co.,  78-377;  Harper  v 
v.  Easton,  16-56;  Kellogg  v.  Kel-  Gleyslein,  85-709;  Miller  v.  Ter- 
sey,  16-388;  Muslon  v.  Turner,  20-  keldson,  80-476;  Ainsiee  v.  Wynn, 
294;  Pickett  v.  Hawes,  20-335;  65  N.  W.,  401;  Wallick  v.  Pierce,' 
Wetherell  v.  Goodrich,  22-583;  71  N.  W.,  429. 

Lillie  v.  Skinner,  46-329;    Cook  v.  62  state  v.  Orwig,  27-528;  Garner 

Woodbury  County,  13-21;  Shear  v.  v.  Pomroy,  11-149. 

Brinkman,   72-698;    Wise  v.   Usry,  ea  Robb  v.  Dougherty,  14-379. 

72-74;    Moody  v.   Edwards,   72-456;  64  Davenport  v.  Ellis,  22-296. 

Underwood  v.   Lombard   Inv.   Co.,  es  paio  Alto  County  v.  Harrison, 

84-25;    Giltrap  v.  Walters,  T7-149;  68-81. 

Reed  v.  Larrison,  77-399;    Second  ee  Clinton  L.  Co.  v.  Mitchell    61- 

132. 


§  1361.]  APPELLATE  PROCEEDINGS.  603 

of  no  practical  utility  under  the  present  law.  Else- 
where, when  treating  of  abstracts,  we  have  considered 
fully  what  the  abstract  must  contain  in  equity  cases. 

§  1361.  Of  the  judge's  certificate  to  the  evidence, 
its  requisites  and  when  it  must  be  filed. — All  the  evi- 
dence must  be  taken  in  writing  at  the  trial,  or  by  deposi- 
tion, and  must  be  certified  by  the  judge  within  the  six 
months  allowed  for  an  appeal;67  and  it  must  affirmative- 
ly appear  that  the  certificate  was  signed  within  the 
statutory  time.68  Nor  can  this  requirement  of  the 
statute  be  waived  by  act  of  the  parties.69  But  this  cer- 
tificate, if  made  in  time,  will  not  be  affected  by  the  fact 
that  it  was  made  after  the  appeal  was  taken.70  It  has 
been  held  that  where  the  certificate  of  the  clerk  is  suffi- 
cient to  enable  the  court  to  try  the  case  de  novo,  the  re- 
quirements of  the  statute  as  to  the  time  of  the  making  of 
the  judge's  certificate  are  not  applicable.71  But  see 
Teague  v.  Fortsch,  66  N.  W.,  1056,  where  the  Cross  case  is> 
overruled.  If  the  court  orders  the  evidence  taken  down 
in  shorthand,  and  it  is  so  taken  and  properly  certified  at 
the  time,  and  is  afterward  transcribed,  that  is  a  suffi- 
cient taking  down  in  writing.72  The  evidence  must  be 
certified  by  the  judge.73  But  it  has  been  held  that  if  the 
judge's  certificate  is  made  in  due  form  to  the  reporter's 
original  notes  as  filed,  it  might  be  considered  as  so  con- 
nected with  the  transcript  when  made  and  filed  in  time, 
as  to  constitute,  with  the  reporter's  certificate,  a  suffi- 
cient certificate  of  the  evidence;  but  the  certificate  would 

67  Code,    Sec.    3652;    Mitchell    v.  W.,  1056;  Runge  v.  Hahn,  75-733; 

Lamb,  59-36;  Paige  County  v.  Am.  Lewis  v.  Markle,  71-652. 

Em.  Co.,  61-246;    Marshalltown  v.  «s  Russell    v.    Johnston,    67-279; 

Forney,    61-578;    Preston   v.   Hale,  Mitchell  v.  Laub,  59-36. 

65-409;  Hartnett  v.  Sioux  City,  66-  «Q  Hartnett  v.  Sioux  City,  66-253. 

253;  Wisconsin,  I.  &  N.  R.  Co.  v.  ™  Goff  v.  Hawkeye  P.,  etc.,  62- 

Braham,  71-484;  Burnett  v.  Lough-  691. 

bridge,  87-324;  Yetzer  v.  Wiles,  91-  ti  Cross  v.  B.  &  S.  W.  R.  Co.,  58- 

478;     Baldwin    v.    Ryder,    85-251;  62. 

Jamison  v.  Weaver,  84-611;  Kava-  72  Ross  v.  LoomSs,  64-432;  Howe 

Her  v.  Machula,  77-121;  Thomas  v.  v.  Jones,  66-156. 

McDonald,  77-126;    State  v.   Boyd,  73  Carskaddon    v.    Bartlett,    63- 

85-740;    Teague  v.   Fortsch,  66  N.  180;    Blanchard  v.   Devoe,   80-521; 

see  No.  67  above. 


604  APPELLATE  PROCEEDIXGS.  [§  1361. 

not  be  deemed  complete  until  the  transcript  is  made  and 
certified  by  the  reporter.74  It  is  no  objection  to  the  trial 
of  a  case  de  novo  that  the  evidence  was  not  taken  down 
by  the  reporter  when  it  is  tried  on  written  evidence.75 
The  judge's  certificate  has  been  held  insufficient  when 
not  attached  to  any  evidence  or  referring  to  any  testi- 
mony as  having  been  taken  in  writing.76  But  when,  on 
a  trial  of  an  issue  as  to  one  defendant,  he  introduced  the 
same  evidence  that  was  used  on  the  hearing  of  the  case 
as  to  another  defendant,  it  wras  held  that  the  evidence 
having  been  certified  as  introduced  on  the  first  trial,  it 
need  not  be  again  certified.77 

The  judge  actually  trying  the  case  is  the  one  to  make 
the  certificate,  even  though  he  is  holding  the  court  in  ex- 
change with  the  regular  judge.78  It  cannot  be  made  by 
his  successor  in  office.79  But  the  statute  now  authorizes 
such  signing  by  the  successor.80  The  certificate  of  the 
judge  must  show  that  all  the  evidence  offered  is  before 
the  court;  that  it  is  all  the  evidence  "introduced,"  is  not 
sufficient81  Nor  is  a  certificate  that  it  was  all  the  evi- 
dence "used"82  or  "adduced."83  But  a  certificate  that  it 
was  all  the  evidence  "offered,  adduced  and  introduced," 
is  sufficient,84  and  so  is  one  that  it  "is  all  the  evidence 
offered  in  said  trial,  as  well  as  the  evidence  introduced 
and  admitted  and  used  in  the  trial,"85  or  that  it  is  "all  the 
evidence  submitted  in  said  cause."80 

If  a  judgment  appealed  from  is  rendered  on  a  referee's 
report  it  is  not  sufficient  that  the  evidence  is  certified  by 
such  referee;  it  must  also  be  certified  by  the  judge.87 
Under  the  present  statute,  if  the  parties  agree  on  the 

74  Merrill  v.  Bowe,  69-653.  Groneweg  v.  Barnum,  70-763;  Polk 

75  Gately  v.  Kniss,  64-537.  v.   Sturgeon,   71-395;    Second    Nat. 

76  Alexander  v.  McGrew,  57-287;  Bk.  v.  Ash,  85-74;   Baldwin  v.  Ry- 
see  Palo  Alto  County  v.  Harrison,  der,  85-251. 

68-81.  82  Hart  v.  Jackson,  57-75. 

77  JEtna.  L.   Ins.  Co.  v.    Bishop,          ss  Tuttle  v.  Story  County,  56-316. 
69-645.  84  Marshalltown   v.    Forney,    61- 

TS  Howe  v.  Jones,  66-156.  578. 

70  Teague  v.  Fortsch,  66  N.  W.,  *$  Wood    v.    Wood,    61-256. 

1056.  86  Miller  v.  Wolf,  63-233. 

so  Code,   Sec.   3749.  87  Porter     v.     Everett,      66-278; 

si  Taylor   v.    Kier,     54-645;     see  Young  v.  Scoville,  63  N.  W.,  607. 


§  1301.]  APPELLATE  PROCEEDINGS.  605 

facts  and  reduce  them  to  writing,  such  statement  takes 
the  place  of  depositions  or  of  oral  testimony  reduced  to 
writing,  and  becomes  the  evidence  in  the  case,  and  upon 
such  evidence  the  case  may  be  tried  de  novo.88 

FORM   OF    CERTIFICATE    OF    SHORTHAND    REPORTER    TO    HIS 

STENOGRAPHIC  NOTES. 

Title,    ) 
Venue,    j 

I,  ,  being  the  official  shorthand  reporter  of  the  district  court 


in  and  for  the judicial  district  of  Iowa,  which  district  embraces 

the  county  of ,  do  hereby  certify  that  the  above  entitled  cause  was 

on  the  -        -  day  of ,  18 — ,   tried  before  his  honor   (name   of 

trial  judge),  at  (name  place)  that  I  took  down  in  shorthand  the  entire 
proceedings  upon  said  trial,  except  the  arguments  of  counsel,  and  that 
the  shorthand  notes  to  which  this  certificate  is  attached,  embrace  and 
contain,  together  with  the  exhibits,  depositions  and  documentary  evi- 
dence therein  referred  to  and  identified,  all  the  evidence  offered,  re- 
ceived or  introduced  upon  said  trial,  all  objections  to  evidence  offered 
as  well  as  to  that  introduced;  all  rulings  upon  the  same  and  all  excep- 
tions thereto,  and  all  proceedings  had  and  done  upon  said  trial,  except 
the  arguments  of  counsel. 

Dated  this  —      -  day  of  —     — ,  18—.  (Signature.) 

Official  shorthand  reporter  of  the  —      —  judicial  district  of  Iowa. 

This  certificate  should  be  filed  attached  to  the  notes 
and  filed  with  the  same  at  the  conclusion  of  the  trial. 

It  is  well  also  to  at  the  same  time  have  the  trial  judge 
certify  to  the  notes. 

Such  certificate  may  be  in  the  following  form: 

FORM   OF   CERTIFICATE     OF     TRIAL    JUDGE     TO     SHORTHAND 

NOTES. 

Title, 
Venue. 

I,  ,  judge  of  the  judicial  district  of  Iowa,  do  certify 

that  the  shorthand  notes  above  certified  by ,  who  is  the  official 

shorthand  reporter  of  this  judicial  district,  and  to  which  this  certificate 
is  also  attached  do,  together  with  the  exhibits,  depositions  and  docu- 
mentary evidence  therein  referred  to  and  identified,  embrace  all  of  the 
evidence  offered,  received  or  introduced  upon  the  trial  of  the  above 
entitled  cause,  all  objections  thereto,  all  rulings  on  the  same  and  all 
exceptions  taken  thereto,  and  all  proceedings  had  and  done  on  said  trial 

ss  Williams  v.  Wells,  62-740. 


GOG  APPELLATE    PROCEEDINGS  .[§1361. 

except  the  arguments  of  counsel,  and  the  same  are  hereby  made  a  part 
of  the  record  in  the  case  as  provided  by  law. 

Dated  this —  day  of ,  18—.  (Signature.) 

Judge  of  the Judicial  District  of  Iowa. 

This  certificate  should  be  made  as  soon  as  the  trial 
is  concluded,  and  be  attached  to  said  notes,  together  with 
the  reporter's  certificate,  and  filed  at  once  with  the  clerk. 
When  the  notes  are  transcribed  into  long  hand  the  fol- 
lowing form  of  certificate  may  be  used: 

FORM  OF  REPORTER'S  CERTIFICATE  TO  TRANSLATION  OF  HIS 

SHORTHAND   NOTES. 
Title, 
Venue. 

I,  ,  the  official  shorthand  reporter  of  the judicial  dis- 
trict of  Iowa,  hereby  certify  that  the  above  entitled  cause  was  on  the 

day  of ,  18 — ,  tried  before  the  honorable  (name  of  judge) 

at  (name  the  place);  that  I  took  down  on  said  trial,  in  shorthand,  the 
entire  proceedings  had  therein,  except  the  arguments  of  counsel,  and 
that  the  above  and  foregoing  is  a  correct  translation  of  my  said  short- 
hand notes  and  that  said  translation  to  which  this  certificate  is  attached 
embraces,  together  with  the  exhibits,  depositions  and  documentary  evi- 
dence therein  referred  to  and  identified,  all  the  evidence  offered,  re- 
ceived or  introduced  upon  said  trial,  all  objections  to  evidence  offered, 
as  well  as  to  that  introduced;  all  rulings  upon  the  same,  and  all  excep- 
tions thereto,  and  all  proceedings  had  and  done  upon  said  trial,  except 
the  arguments  of  counsel. 

Dated  this  —    —  day  of ,  18 — .  (Signature.) 

Official  shorthand  reporter  of  the judicial  district  of  Iowa. 

To  this  should  be  attached  the  judge's  certificate,  when 
the  paper  should  be  filed. 

From  the  foregoing  forms  a  judge's  certificate  to  the 
translation  of  the  notes  can  readily  be  drawn. 

If  evidence  is  adduced  upon  some  interlocutory  matter, 
as  on  a  motion  for  a  change  of  venue,  a  challenge  to  the 
panel  of  jurors,  motion  for  a  new  trial,  based  upon  mis- 
conduct of  court,  counsel,  or  jury,  or  in  other  like  cases, 
the  record  must  show  that  the  supreme  court  has  all  of 
the  evidence  before  it  upon  which  the  trial  court  acted. 
In  such  cases  such  evidence  should  be  embodied  in  the 
bill  of  exceptions,  which  should  clearly  state  that  it  con- 
tains all  of  the  evidence  relating  to  any  such  matter 

which  it  is  desired  to  have  the  supreme  court  pass  upon, 

• 


§§  1362-1364.]  APPELLATE    PROCEEDINGS.  607 

else  snck  question  will  not  be  considered.  Of  course  the 
bill  must  be  properly  certified.  See  chapter  on  bills  of 
exceptions. 

If  it  is  desired  to  raise  any  question  on  the  arguments 
of  counsel  and  the  above  forms  are  used  they  should  be 
so  changed  as  to  embrace  the  arguments. 

§  1£62.  Of  the  clerk's  certificate,— The  certificate 
of  the  clerk  that  the  transcript  contains  all  the  evidence 
on  file  does  not  sufficiently  show  that  it  was  all  the  evi- 
dence used  in  the  trial  in  the  court  below.89  A  certificate 
by  the  clerk  that  the  printed  abstract  is  an  abstract  of  all 
the  evidence  as  shown  by  the  transcript  made  by  the  of- 
ficial reporter  does  not  show  that  the  record  contains  all 
the  evidence.90 

§  1363.  Of  the  hearing  and  determination  of  ap- 
peals in  equitable  actions. — On  an  appeal  in  an  equit- 
able action  triable  de  novo,  the  court  will  inquire  into 
the  merits  of  the  case,  for  the  purpose  of  administering 
justice,  guided  only  by  the  universal  principles  of  equity 
jurisprudence.  It  will  not  be  confined  to  errors  apparent 
of  record.91  It  will  review  and  pass  upon  the  facts,  as 
well  as  the  law  of  the  case,92  and  will  render  such  a  judg- 
ment as  the  lower  court  should  have  rendered  on  the  law 
and  facts.93  But  it  can  only  act  on  the  testimony  pre- 
sented and  considered  by  the  court  below.94 

§  1364.  Of  questions  as  to  the  admissibility  of  evi- 
dence.—  On  the  trial  of  cases  de  novo  on  appeal,  ques- 
tions as  to  the  competency  of  testimony,  admissibility  of 
depositions,  and  the  like,  come  up  as  original  questions 
upon  the  objections  made  in  the  court  below,  and  upon 
their  decision  the  testimony  is  considered  or  rejected,  as 
the  case  may  be.  If  such  testimony  is  found  competent 
and  admissible,  it  is  considered,  although  excluded  by 
the  lower  court;  but  the  decision  will  not  be  thereby  re- 

so  Grant  v.  Grant,  46-478;  Daven-         »i  Austin  v.  Carpenter,  2  G.  Gr., 
port  v.  Ells,  22-296;  see  Teague  v.      131. 
Fortsch,  66  N.  W.,  1056.  02  Pierce  v.  Wilson,  2-20. 

90  Collins  v.   Wilson,  68  N.   W.,         »3  Sherwood  v.  Sherwood,  44-192. 
916.  04  Walker   v.   Ayres,   1-449;    Mc- 

Gregor v.  Gardner,  16-538. 


608  APPELLATE  PROCEEDINGS.  [§  1365. 

versed,  unless  the  consideration  of  such  testimony  makes 
a  different  conclusion  necessary.95  Xor  will  a  case  be 
reversed  for  error  in  the  admission  of  evidence.96  The 
proper  practice  in  the  trial  of  such  actions  in  the  court 
below  is  to  admit  all  of  the  evidence  offered  subject  to 
the  objection,  or  at  least  to  have  it  made  a  part  of  the 
record,  even  though  objections  thereto  are  sustained; 
if  this  is  not  done,  the  cause  may  sometimes  be  remanded, 
or  the  defeated  party  will  be  compelled  to  have  a  review 
of  the  questions  which  are  not  permitted  to  be  answered 
on  error.97  It  was  held  in  the  trial  of  an  equitable  ac- 
tion where  a  deposition  was  erroneously  stricken  from 
the  files,  that  the  supreme  court  would  not  try  the  case 
de  novo,  considering  such  deposition,  but  would  remand 
the  case  for  a  new  trial  to  enable  the  party  to  introduce 
further  evidence.98  All  questions  may  be  presented  in 
the  supreme  court  wrhich  legitimately  arise  on  the 
record,  whether  urged  or  relied  on  in  argument  in  the 
lower  court  or  not.1  Alleged  errors  in  interlocutory  pro- 
ceedings will  not  be  considered,  but. the  case  will  be  tried 
on  its  merits.2 

§  1365.  When  the  case  will  be  remanded. — The  de- 
cree of  the  lower  court  will  be  reversed  when  it  is  ap- 
parent from  the  record  that  there  is  not  sufficient  evi- 
dence to  sustain  it,  but  if  the  record  entry  recites  that 
there  was  other  evidence  which  would  be  sufficient,  and 
which  may  have  been  lost,  the  case  will  be  remanded  for 
a  re-trial.3  But  ordinarily  it  is  not  the  duty  of  the  court 
to  remand  the  case  when  the  evidence  is  not  sufficient  to 
support  the  judgment  of  the  court  below.4  When,  for 
want  of  proper  steps  being  taken,  the  case,  though  equit- 

»5  Blough  v.  Van  Hoorebeke,  48-  »s  Sweet  v.  Brown,  61-69. 

40;  see  Van  Bogart  v.  Van  Bogart,  i  Seymour  v.  Shea,  62-708. 

46-359;  Putney  v.  O'Brien,  53-117;  2  Hackworth  v.  Zollars,  30-433; 

Redhead  v.  Pratt,  72-99;  Graf  ton  v.  State  v.  Orwig,  27-528. 

Moorman,  88-736.  3  Webster  County  v.  Taylor,  19- 

scRasner  v.   Patterson,    70-681;  117. 

see  Hanks  v.  Van  Garden,  59-179.  •*  Wickersham  v.  Reeves,  1-413; 

o-  Blough  v.  Van  Hoorebeke,  48-  Buttc'-field    v.    Wilton    Collegiate 

40;  Clinton  Lumber  Co.  v.  Mitchell,  Inst.,  85-404. 
61-132;  Donnell  v.  Braden,  70-551. 


§§  1366,  1367.]     APPELLATE  PROCEEDINGS.  609 

able,  is  not  triable  de  novo  and  is  tried  on  errors  as- 
signed, it  must  be  remanded  for  further  proceedings  in 
the  lower  court.5  So  a  cause  may  be  remanded  to  make 
necessary  parties  thereto.6 

§  1366.  Of  the  decree  in  a  cause  triable  de  novo— 
A  decree  will  not  be  so  modified  as  to  render  it  more  fa- 
vorable to  the  party  not  appealing.7  Where  the  record 
does  not  show  that  the  appeal  was  taken  for  delay,  and 
the  judgment  of  the  lower  court  is  affirmed  after  the  ex- 
piration of  the  time  fixed  therein  for  performance  by  the 
unsuccessful  party,  the  time  of  performance  will  be  so 
extended  as  to  permit  him  to  perform.8  Where  the  case 
is  tried  anew,  and  the  action  of  the  court  below  held  er- 
roneous, the  successful  party  is  entitled  to  have  such  a 
decree  as  is  proper  on  the  record  as  made  in  the  court 
below  entered  up  in  the  supreme  court;9  yet  there  are 
exceptions  to  this  rule.10 

§  1367.  Of  proceedings  in  the  lower  court  in  an 
equitable  action  after  it  is  remanded. — After  the  case 
is  tried  and  remanded  for  decree  in  accordance  with  the 
decision  of  the  supreme  court,  the  pleadings  can  not  be 
so  amended  as  to  present  a  defense  which  existed  when 
the  case  was  tried,  except  in  rare  cases.11  But  when  a 
cause  is  thus  remanded,  it  is  in  the  discretion  of  the 
lower  court  to  admit  evidence  omitted  by  inadvertence, 
or  additional  or  amended  pleadings  may  be  permitted  to 
be  filed.12  But  material  evidence  discovered  since  the 
original  trial,  and  matters  arising  since  such  trial  which 
affect  the  merits  of  the  case,  may  be  shown  after  a  cause 
is  remanded,  and  the  pleadings  may  be  amended  accord- 
ingly.13 If  the  cause  is  remanded  merely  for  judgment, 
it  must  be  rendered  as  a  matter  of  course,  and  upon  mo- 

s  Jordan  v.  Wisner,  48-180;  10  White  v.  Farlie,  67-628,  and 

Kershman  v.  Swehla,  62-654.  cases  cited. 

s  Postlewait  v.   Howes,  3-365.  "Sexton  v.   Henderson,  47-131; 

T  Smith  v.  Wolf,  55-555.  see  No.   12. 

s  Daniels  v.  St.  L.,  K.  C.  &  N.  12  Adams  County  v.  B.  &  M.  R. 

R.  Co.,  56-192.  R.  Co.,  44-335. 

»  First  Nat.  Bk.  v.  Baker,  60-132.  is  Sanxey  v.  Iowa  C.  G.  Co.,  68- 

542. 

Vol  11—39 


610  APPELLATE    PEOCEEDIXGS.  [§  1368. 

tion,  unless  the  unsuccessful  party  brings  himself  within 
some  recognized  rule  entitling  him  to  a  new  trial.14 
Where  decree  in  partition  allowed  plaintiff  for  rents  up 
to  time  of  trial  was  modified  as  to  some  of  the  interests 
of  the  parties  and  remanded  and  a  supplemental  petition 
filed  in  the  lower  court  claiming  rents  for  the  property 
after  the  trial,  it  was  held  that  it  did  not  set  up  a  new 
cause  of  action,  and  the  relief  so  demanded  was  prop- 
erly given  on  final  decree.15  The  statement  in  an  opinion 
on  appeal  as  to  a  question  of  fact  is  not  conclusive  on 
the  lower  court  on  a  second  trial  of  the  case.16 

§  1368.  Questions  not  raised  in  court  below  will 
not  be  considered  on  appeal. — We  have  before  stated 
that  the  supreme  court  will  not  review  or  pass  upon 
questions  not  raised  in  the  court  below;  nor  will  it  cor- 
rect errors  which  could  have  been  corrected  in  the  court 
below,  until  after  a  motion  has  been  made  in  such  court 
and  overruled.17  No  useful  purpose  could  be  subserved 
by  citing  all  of  the  cases  applicable  to  the  above  proposi- 
tion, but  the  following  cases  are  stated  wherein  it  has 
been  applied,  viz.:  To  cases  wrhere  new  issues  and  new 
objections  are  first  made  in  the  appellate  court.18  When 
it  is  sought  to  sustain  an  erroneous  ruling  on  a  ground 
not  urged  below.19  Objections  to  the  service  of  the 
notice  not  made  below.20  Where  objection  is  first  made 
in  the  supreme  court  to  the  jurisdiction  of  the  lower 

i*  Austin  v.  Wilson,  57-586.  392;    Zabel    v.    Nyenhuis,    83-756; 

is  Leach   v.   Germania   Building  Shuck  v.  Chicago,  R.  I.  &  P.  R.  Co., 

Ass'n,  70  N.  W.,  1090.  73-333;  Grill  v.  Jeffreys,  64  N.  W., 

"Baxter  v.   Rollins,   68  N.  W.,  625;  Leick  v.  Tritz,  62  N.  W.,  855; 

721.  Logan  v.  McCahan,  71  N.  W.,  252; 

IT  Garvin  v.  Cannon,  53-716.  Wilson  v.  Reddick,  69  N.  W.,  1039; 

is  Patterson  v.  Stiles,  6-54;   Me-  Bull  v.  Keenan,    69    N.    W.,    433; 

Gregor  v.  Gardner,  16-568;  Adams  Boos  v.  Dulin,  68  N.  W.,707;  Means 

County    v.    B.    &    M.    Co.,  44-335;  v.  Yeager,  65  N.  W.,  993;  Casey  v. 

Oliver  v.  Depew,  14-490;    Garland  Ballow  Banking  Co.,  67  N.  W.,  98; 

v.  Wholebau,  20-271;  Brazelton  v.  Moore  v.  Graves,  65  N.  W.,  1008; 

Jenkins,    Morris,    15;      Lower    v.  Klotz    v.    James,    64    N.    W.,  648; 

Lower,  46-525;   Hinkle  v.  Saddler,  Tyler  v.  Coulthard,  64  N.  W.,  681; 

66  N.  W.,  765  Chase  v.  Kaynor,  78-  State  v.  Seery,  64  N.  W.,  631;  Hoff- 

449;  Brandt  v.  Allen,  76-50;  Pence  man  v.  Smith,  63  N.  W.,  182. 

v.  Chicago,  R.  I.  &  P.  R.  Co.,  79-  10  Knapp  v.  Sioux  C.  &  P.  R.  Co., 

389;   Gate  City  Land  Co.  v.  Heil-  65-91. 

man,  80-477;  Benjamin  v.  Shea,  83-  20  Des  Moines  v.  Layman,  21-153. 


§  13G8.]  APPELLATE  PROCEEDINGS.  611 

court.21  Unless  it  appears  that  the  trial  court  had  no 
jurisdiction.22  Objections  to  pleadings  not  raised  by 
motion  or  demurrer  t>elow.23  Objections  that  the  relief 
•••ranted  was  not  asked  for  in  the  pleadings.24  A  defense 
not  pleaded  in  the  court  below  will  be  disregarded.25 
The  question  of  variance  between  pleadings  and  proofs 
can  not  be  first  raised  in  the  supreme  court.26  Nor  can 
the  fact  that  the  jury  was  not  sworn.27 

Objections  to  evidence  ean  not  be  first  made  in  the  ap- 
pellate court.28  Nor  to  the  form  of  the  judgment.29  Nor 
can  a  motion  to  vacate  an  injunction  be  first  made  after 
appeal;30  and  a  question  which  can  only  be  raised  by  a 
motion  for  judgment  non  obstante  verdicto  can  not  be 
first  raised  on  appeal.31  Nor  can  objections  which  might 
have  been  corrected  below  by  a  motion  in  arrest  of  judg- 
ment.32 Nor  objections  that  the  judgment  was  exces- 
sive.33 Nor  an  objection  that  the  judgment  was  improp- 
erly entered.34  Nor  will  a  judgment  by  default  be  re- 
viewed until  a  motion  has  been  made  in  the  lower  court 
to  set  it  aside,  and  overruled.35  Nor  an  error  in  the  taxa- 

21  Bridgman  v.  Wilcut,  4  G.  Gr.,  26  Singer  v.  Given,  61-93;    Ress- 
563;  Davenport  v.  C.,  R.  I.  &  P.  R.  ler  v.  Baxley,  81-750;    JEtna  Iron 
Co.,   38-633;    Spelman   v.   Gill,   75-  Works  v.  Firmenich  Mfg.  Co.,  90- 
717;  Corey  v.  Sherman,  64  N.  W.,  390. 

828.  27  state  v.  Schlagel,  19-169. 

22  Gould  v.  Hurto,  61-45;  Grover  28  Johnson     v.     Miller,     69-562; 
v.    Richmond,    53-570;    St.    Joseph  State  v.  McLaughlin,  44-82;  Coun- 
Mfg.  Co.  v.  Harrington,  53-380.  cil   Bluffs    L.    v.    Billups,   67-674; 

23  Ruddick    v.   Patterson,    9-103;  Luke  v.  Bruner,  15-3;  Iowa  H.  Co. 
Williams  v.  Sill,  12-511;    Davis  v.  v.  Duncombe,  51-525;  Childs  v.  Mc- 
Burt,    7-56;     Gifford  v.   Ferguson,  Chesney,  20-431;  Lines  v.  Lines,  54- 
19-166;    McCoy  v.  Connell,  40-457;  600;    Davidson   v.    Dwyer,    62-332; 
Moser  v.  Risdon,  46-251;   Davis  v.  Sawin  v.   Union  Building  &   Sav. 
Walter,  70-465;   Wilson  v.  Harris,  Ass'n,  64  N.  W.,  401. 

68-443;  Dubuque  &  S.  C.  R.  Co.  v.  29  Barlow  v.  Brock,  25-308;  Rob- 
Cedar  Falls  &  M.  R.  Co.,  76-702;  inson  v.  Keith,  25-321. 
Garrett    v.    Polk    County,    78-108;  so  Bishop  v.  Carter,  29-165. 
Scott  v.  Chicago,   M.  &  St.  P.  R.  3i  Coonrod  v.  Benson,  2  G.  Gr., 
Co.,    78-199;      Adams     County     v.  179. 

Hunter,    78-328;    Mann   v.    Taylor,  32  Smith  v.  Warren  County,  49- 

78-355;  Winkleman  v.  Winkleman,  336. 

79-319.  33  Black  v.  Boyd,  52-719;  Dickey 

2-1  Iowa  L.  Co.  v.  Foster,  49-25;  v.  Harmon,  26-501;    Finch  v.  Bil- 

Williams    v.    Wilcox,    66-65;     see  lings,  22-228;  Keller  v.  Jackson,  58- 

Hoyt  v.  Hoyt,  68-703.  629. 

25  Thompson  v.  Lee  County,  22-  34  Carmichael   v.    Vandebur,   50- 

206;     Barlow     v.     Brock,     25-308;  561. 

Pierce  v.  Early,  79-199.  35  Hunt  v.  Stevens,  25-261;  Sav- 


G12  APPELLATE  PEOCEEDIXG3.  [§  1369. 

tion  of  costs  until  a  motion  to  re-tax  has  been  made  and 
overruled  below.36  Xor  can  mistakes  of  the  clerk  be  first 
urged  in  the  supreme  court.37  And  the  following  ob- 
jections can  not  be  first  raised  in  the  supreme  court.  An 
objection  to  the  sufficiency  of  an  affidavit  for  an  attach- 
ment on  motion  to  dissolve.38  An  objection  to  the  form 
in  which  instructions  were  given,  not  made  at  the  time 
they  were  given.39  An  objection  not  based  on  an  ex- 
ception taken  on  the  trial  in  the  lower  court.40  An  ob- 
jection to  the  action  of  the  court  in  transferring  a  cause 
to  the  equity  docket.41  An  objection  to  the  form  of  an 
issue  presented  to  the  jury  in  an  equity  case.42  To  the 
allowance  of  interest  upon  the  verdict  of  a  jury  from  the 
time  of  the  commencement  of  the  action.43  To  an  as- 
sessment of  damages  on  an  injunction  long  after  its  dis- 
solution.44 To  a  decree  of  costs  against  defendants  with- 
out specifying  which  one  should  pay  them.45  An  objec- 
tion to  the  sufficiency  of  newly  discovered  evidence  and 
to  the  affidavits  embodying  the  same,  not  made  in  the 
court  below.46  For  a  misjoinder  of  parties  not  made  be- 
low.47 No  appeal  can  be  based  on  a  ruling  subsequently 
changed  or  set  aside  by  the  court.48 

§  1369.  Of  the  presumptions  which  obtain  with 
reference  to  the  regularity  of  the  proceedings  of  the 
court  below.  —  Every  reasonable  presumption  will  be 
entertained  in  favor  of  the  ruling  of  the  lower  court, 
until  overcome  by  something  appearing  of  record,  and 

ings  Bk.  v.  Horn,  41-55;  Pigman  v.  Corn  Exchange  Bank  v.  Schuttle- 

Denney,  12-396;  McKinley  v.  Been-  worth,  68  N.  W.,  827;  Kelley  v.  Inc. 

tel,  12-561;  Van  Vark  v.  Van  Dam,  Town  of  West  Bend,  70  N.  W.,  726; 

14-232;    Downing  v.  Harmon,    13-  State  v.  Lee,  64  N.  W.,  284. 

535;    Pratt  v.  Western  S.  Co.,  27-  «  Gate   City  Land   Co.   v.   Heil- 

363.  man,    80-477. 

se  Hemphill  v.  Sallady,  1  G.  Gr.,  «  Chamberlin    v.    Juppiers,    11- 

801;  Yeager  v.  Circle,  1  G.  Gr.,  438.  513. 

37  Daniels  v.  Claflin,  15-152.  «  Wadsworth    v.    Harrison,    14- 

ss  Berry  v.  Gravel,  11-135.  272. 

39  Davenport  v.   Cummings,    15-  **  Woods  v.  Irish,  14-427. 

219.  45  Martin  v.  Jones,  15-240. 

•»o  Spelman  v.  Gill,  75-717;  State  *«  Darrance  v.  Preston,  18-398. 

v.  Reasby,  69  N.  W.,  451;  Dean  v.  *?  Evans  v.  Hawley,  35-83. 

Zenor,  65  N.  W.,  410;  Nat.  Horse  «  Thompson  v.  Burnham,  35-411. 
Impt.  Co.  v.  Novak,  64  N.  W.,  616; 


§  1369.]  APPELLATE  PKOCEEDINGS.  613 

error  must  be  made  affirmatively  to  appear.49  Thus  it 
will  be  presumed  that  there  was  sufficient  testimony  to 
support  the  judgment,  unless  the  contrary  appears.50 
And  in  favor  of  the  finding  of  the  court,  it  will  be  pre- 
sumed that  there  was  lawful  evidence  on  wrhich  to  base 
it.51  Nor  will  the  appellate  court  presume  that  the  proof 
in  a  case  established  a  state  of  facts  which  would  render 
the  decision  of  the  court  below  erroneous,  if  a  state  of 
facts  can  be  supposed  under  which  such  decision  would 
be  correct,52  Where  no  finding  of  facts  is  made,  the  pre- 
sumption is  that  the  court  found  such  facts  as  justified 
its  conclusions  of  law,  unless  the  contrary  appears.53  If 
a  judgment  is  based  on  an  authentication  of  a  judgment 
from  another  State,  which  is  insufficient,  it  will  be  pre- 
sumed that  there  was  other  evidence  showing  the  judg- 
ment.54 If  attorney's  fees  are  taxed  after  the  rendition 
of  a  judgment  in  the  case,  it  will  be  presumed  such  taxa- 
tion was  made  upon  proper  evidence,55  and  the  same 

49  Davis  v.  Moffltt,  4  G.  Gr.,  92;  78-632;  Short  v.  C.,  M.  &  St.  P.  R. 

Hendrie  v.  Rippey,  9-351;  David  v.  Co.,  79-73;    Ida  County  v.  Woods, 

Leslie,  14-84;  Morris  v.  Steele,  62-  79-148;     State  v.  Coppock,  79-482; 

228;    Hintrager   v.    Kiene,    62-605;  Ecklund  v.   Talbot,  80-569;    Gavin 

Brobst  v.  Thompson,  4  G.  Gr.,  135;  v.  Bishoff,  80-605;  Blair  v.  Madison 

Speers  v.   Fortner,  6-553;    Scofield  County,  81-313;  Pickerell  v.  Hiatt, 

v.  Ford,  56-370;  Bower  v.  Webber,  81-537;    Nat.  State  Bk.  v.  Boesch, 

69-286;   Hunt  v.  Highman,  70-406;  90-47;     Wright    v.     Farmers  Mut. 

State  v.  Hopkins,  67-285;   Holland  Live   Stock  Ins.  Ass'n,  65  N.  W.f 

v.   Union  County,  68-56;    Keys   v.  308;     McVey    v.    Johnson,    75-165; 

Francis,    28-321;     Fouts  v.  Pierce,  Read  v.  Divilbliss,  77-88;   Cahalan 

64-71;   Dixon  v.  State,  3-416;  Isett  v.  Cahalan,  82-416;   State  v.  Potts, 

v.  Oglevie,  9-313;  Stewart  v.  Bish-  83-317;       Wightman       v.       Butler 

op,  33-584;  State  v.  Foster,  40-303;  County,  83-691;    Bruner  v.   Wade, 

Thompson  v.   Winnebago  County,  84-698;  Donnelly  v.  Cedar  County, 

48-155;    Pottawattamie    County    v.  75-536;  Winey  v.  C.,  M.  &  Zt.  P.  R. 

Marshall  County,  56-410;    State  v.  Co.,  92-622. 

Ross,  21-467;  Ward's  Heirs  v.  so  Brady  v.  Malone,  4-146;  Hef- 
Cochran,  36-432;  Johnson  v.  Mantz,  ferman  v.  Burt,  7-320;  Jennings  v. 
69-710;  State  v.  Gibbs,  39-318;  Conn,  11-542;  Willett  v.  Millman, 
Worthington  v.  Olden,  31-419;  61-123;  Phillipps  v.  Phillipps,  46- 
Calder  v.  Smalley,  66-219;  State  v.  703;  Ida  County  v.  Woods,  79-148. 
Saunders,  30-582;  Mills  County  Bk.  si  Henry  v.  Evans,  58-5<50;  Bu- 
v.  Perry,  72-15;  In  re  Will  of  Nor-  ford  v.  DeVoe,  65  N.  W.,  413;  Wat- 
man,  72-84;  Arneson  v.  Thorstad,  kins  v.  Powell,  68  N.  W.,  597;  City 
72-145;  Nat.  State  Bk.  v.  Delahaye,  of  Burlington  v.  Unterkircher,  68 
82-34;  Pierce  v.  Herrold,  83-764;  N.  W.,  795. 
Smith  v.  Yager,  85-706;  Minnesota  52  Crane  v.  Ellis,  31-510. 
Stone  Ware  Co.  v.  Knapp,  75-561;  53  Qskaloosa  v.  Pinkerton,  51- 
Donnelly  v.  Burkett,  75-613;  Foster  697. 

v.  Hinson,  76-714;  Pingery  v.  C.  &  54  ciemmer  v.  Cooper,  24-185. 

D.  R.  Co.,  78-438;  Ellis  v.  Butler,  ss  Kelso  v.  Fitzgerald,  67-266. 


614  APPELLATE  PROCEEDINGS.  [§  1369. 

presumption  exists  to  justify  a  finding  that  the  defend- 
ant was  duly  and  legally  served  with  process.56  So  it 
will  be  presumed  that  there  was  evidence  to  support  a 
default.37  And  if  a  decree  recites  that  certain  matters 
essential  to  the  jurisdiction  of  the  court  were  made  to 
appear,  it  will  be  presumed  such  was  the  fact.58  And 
when  the  record  showed  that  the  trial  was  not  had  to  a 
jury,  it  will  be  presumed  that  a  jury  was  waived.59  The 
error  must  not  only  affirmatively  appear,  but  it  must  do 
so  with  reasonable  certainty.60 

The  same  presumption  exists  in  favor  of  a  record,61 
and  as  to  pleadings,62  and  as  to  incidental  rulings  of  the 
court  during  the  trial.63 

When  it  appears  that  a  motion  or  demurrer  was  filed, 
but  the  record  is  silent  as  to  any  ruling  thereon,  it  will  be 
presumed  it  was  waived.64  If  no  ground  can  be  discov- 
ered or  pointed  out  upon  which  the  action  of  the  court 
can  be  upheld,  the  presumption  of  regularity  will  be 
overcome.65  If  objection  to  the  evidence  is  sustained, 
and  the  record  does  not  show  the  ground  of  the  objec- 
tion, if  the  evidence  is  vulnerable  to  any  objection,  it  will 
be  presumed  that  one  was  made  and  sustained.66  Nor 
will  it  be  presumed  that  the  action  of  the  court  was 
based  on  anything  not  appearing  of  record  when  no  other 
evidence  than  that  of  record  could  have  been  introduced 
in  the  court  below.67  The  same  presumptions  as  to  regu- 
larity obtain  with  reference  to  the  instructions  given  by 
the  court  below.68 

BO  Kent  v.  Coquillard,  67-500.  First  Nat.  Bk.  v.  Carpenter,  41-518; 

"  Semple  v.  Lee,  13-304.  Moore  v.  Gilbert,  46-508;  Payne  v. 

ss  Jewett  v.  Miller,  12-85.  Dicus,  88-423;    Schroeder  v.  Web- 

59  Hawkins  v.  Rice,  40-435.  ster.  88-627;  Corey  v.  Gillespie,  62 

eo  Randolph   Bk.    v.    Armstrong,  N.  W.,  837;   Langhammer  v.  Man- 

11-515;  Gantz  v.  Clark,  31-254.  Chester,  68  N.  W.,  688. 

GI  Mahaska  County  v.  Ruan,  45-  os  Baird  v.  C.,  R.  I.  &  P.  R.  Co., 

328;  Mackemer  v.  Benner,  1  G.  Gr.,  61-359;    see  Emery  v.   Emery,  54- 

157.  106. 

«2  Hervey  v.  Savery,  48-313.  en  Hoben  v.  B.  &  M.  R.  R.  Co., 

es  Clinton  Nat.  Bk.  v.  Torry,  30-  20-562. 

85;  Thompson  v.  Burnham,  35-411;  «T  McGovern  v.   Keokuk  L.   Co., 

McCue  v.  Wapello  County,  56-698.  61-265. 

e*  Sigler  v.  Woods,  1-177;  Busick  es  stier     v.     Oskaloosa,     41-353; 

v.  Bumm,  3-63;  Boardman  v.  Beck-  Moody  v.  St.  P.  &  S.  C.  R.  Co.,  41- 
with,  18-292;  State  v.  Ross,  21-467; 


§§  1370,  1371.]    APPELLATE  PBOOEEDIiN GS.  615 

§  1370.  Same — When  the  evidence  is  not  all  be- 
fore the  court. — If  the  evidence  is  not  all  before  the 
court  it  will  be  presumed  that  there  was  evidence  suf- 
ficient to  support  the  verdict.09  So  it  will  be  presumed 
that  a  sufficient  showing  was  made  to  justify  the  court 
in  dissolving  an  injunction,70  and  that  there  was  evi- 
dence warranting  the  giving  of  the  instructions  which 
were  given.71  When  the  abstract  only  obtains  a  small 
part  of  the  evidence  an  instruction  can  not  be  reviewed 
where  the  evidence  must  be  consulted  in  order  to  de- 
termine its  correctness.72  Where  instructions  clearly 
relate  to  a  matter  of  law,  as  shown  by  the  pleadings,  they 
will  be  considered  on  appeal  in  the  absence  of  the  evi- 
dence.73 The  same  presumptions  of  regularity  obtain  in 
actions  in  equity,  as  at  law.74 

§  1371.  What  is  error  without  prejudice — Gen- 
erally.—  The  statute  has  wisely  provided  that  no, excep- 
tion shall  be  regarded  in  the  supreme  court  unless  the 
ruling  has  been  on  a  material  point,  and  the  effect 
thereof  prejudicial  to  the  rights  of  the  party  excepting.75 

284;  State  v.  Stanley,  48-221;.  War-  Murray,  75-173;  Coleman  v.  Reel, 

bassee  v.  Card,  74-306.  75-304;  King  v.  Mahaska  County, 

09  State  v.  Pittman,  38-252;  75-329;  Mclntire  v.  Eastman,  76- 
Wicke  v.  Iowa  State  Ins.  Co.,  90-4;  455;  State  v.  Row,  81-138;  Church- 
State  v.  Drorsky,  73-484.  ill  v.  Groneweg,  81-449;  Fisk  v.  C., 

TO  Gray  v.   Montgomery,  17-66.  M.  &  St.  P.  R.  Co.,  83-253;   Hagan 

71  Blackburn  v.  Powers,  40-681;  v.  Merchants,  etc.,  Ins.  Co.,  81-321; 
Gantz  v.  Clark,  31-254;  Rice  v.  Des  Flanigan  v.  B.  &  O.  R.  Co.,  83-639; 
Moines,  40-638;    State  v.  Hemrick,  Phelps  v.  Walkey,  84-120;   Croddy 
62-414;  Wallace  v.  Roff,  37-192.  v.   C.,  R.   I.   &  P.  R.   Co.,   91-598; 

72  Molony  v.  Railway,  63  N.  W.,  Trulock  v.  Donahue,  85-748;  Seska 
690.  v.  C.,  M.  &  St.  P.  R.  Co.,  77-137; 

73  Seevers    v.    Cabel,    62    N.    W.,  Bever  v.  Spangler,  93-576;  Ft.  Mad- 
669.  ison  L.  Co.  v.  Batavian  Bank,  77- 

7i  Garner  v.  Pomory,  11-149.  393;  Chase  v.  Kaynor,  78-449;  Rap- 

75  Code,  Sec.  3754;  Hawkeye  Ins.  pleye  v.  Cook,  79-564;    Worden  v. 

Co.  v.  Brainard,  72-130;    Moses  v.  H.  &  S.  R.  Co.,  76-310;  Edergly  v. 

Penquit,  72-611;  Potts  v.  Tuttle,  79-  Stewart,  86-87;  Hathaway  v.  B.,  C. 

253;  Chicago,  R.  I.  &  P.  R.  Co.  v.  R.    &   N.   R.   Co.,   66    N.   W.,   892; 

Dey,  76-278;    Schoenhofel  Brewing  Jones  v.  Cooper,  65  N.  W.,  1000; 

Co.  v.  Armstrong,  89-673;  Whitney  Mellerup  v.  Travelers  Ins.  Co.,  63 

v.  Brownell,  71-251;  Deere  v.  Wolf,  N.  W.,  665;  White  v.  Byam,  64  N. 

77-115;     Mayne    v.    Council    Bluffs  W.,  765;   Richardson  v.  McLaugh- 

Sav.  Bk.,  80-710;  Farmers  Bank  v.  lin,  92-393;   Ida  County  v.  Woods, 

Arthur,  75-129;   Carruthers  v.  Me-  79-148. 


016 


APPELLATE    PROCEEDINGS. 


[§  1371. 


And  it  has  been  very  often  decided  that  a  cause  would 
not  be  reversed  on  account  of  error  committed  by  the 
court  below,  unless  such  error  has,  in  fact,  prejudiced  the 
case  of  the  one  complaining,  and,  generally,  that  fact 
must  be  shown  by  the  appellant.76  But  sometimes  it  is 
held  that  if  the  error  appears  it  will  be  presumed  to  have 
been  prejudicial.77  Error  will  be  regarded  as  without 
prejudice  when  it  appears  that  justice  has  been  done 
and  that  a  new  trial  would  result  in  the  same  verdict  or 
judgment.78  And  this  is  so,  though  the  jury  failed  to 
jrive  nominal  damages.79  And  error  which  would  be 

o  o 

ground  for  reversal  of  a  cause  may  be  waived  by  the  act 
of  the  party  complaining;  thus  rulings  on  motions  to 
strike  out  evidence  not  having  been  made  or  insisted  on, 
error  in  admitting  the  evidence  is  waived.80  So  subse- 
quent acts  of  the  court  may  cure  errors  previously  com- 


76  Bremer  County  Bk.   v.  East- 
man, 34-392;   Tuck  v.  Singer  Mfg. 
Co.,  67-576;  Hoadley  v.  Hammond, 
63-599;    Boyce  v.   Wabash  R.  Co., 
63-70;  Wilson  v.  Me  Adams,  10-590; 
Hoy  v.  Cowgill,    52-711;    State  v. 
Woodson,  41-425;    Union,    etc.,    v. 
Neill,  31-95;    Will   v.  Wright,   32- 
451;    Hamilton    v.    Floyd,  20-598; 
Crawford  v.  Paine,  19-172;  Hamil- 
ton v.  Thorn,  66  N.  W.,  166;  White 
v.  Byam,  64  N.  W.,  765;  see  cases 
last  above  cited. 

77  Smith  v.  Johnson,  45-308;  Pot- 
ter v.  C.,   R.   I.   &  P.   R.  Co.,   46- 
399;  Strobel  v.  Moser,  70-126;  Car- 
lin  v.  C.,  R.  I.  &  P.  R.  Co.,  31-370; 
Bland      v.      Hixenbaugh,     39-532; 
Roby    v.    Appanoose    County,    63- 
113;  Harrison  v.  Charlton,  37-134; 
George  v.  K.  &  D.  M.  R.  Co.,  53- 
503;  Ferguson  v.  Davis  County,  51- 
220;    Moore  v.  C.,  St.  P.  &  K.   C. 
R.  Co.,  93-484;    Neville  v.  C.  &  N. 
W.  R.  Co.,  79-232;  State  v.  Adams, 
78-292. 

78  Dawson  v.  Wisner,  11-6;  Brad- 
dy    v.    Lumery,    11-29;    Allison    v. 
King,  25-56;  McNally  v.  Shobe,  22- 
49;    Cooper   v.   Central   R.   of   la., 
44-134;    Jamieson  v.  Perry,  38-14; 
Whiting  v.  Root,  52-292;  Callanan 
v.   Shaw,  24-441;    Keokuk  County 


v.  Howard,  42-29;  Blair  Town  Lot 
&  Land  Co.  v.  Hillis,  76-246; 
Newell  v.  Martin,  81-238;  Rappleye 
v.  Cook,  79-564;  Van  Gorder  v. 
Sherman,  81-403;  Ellithorpe  v. 
Reidessell,  88-729;  Ady  v.  Free- 
man, 90-402. 

7»  Watson  v.  Van  Meter,  43-76; 
Rowley  v.  Jewett,  56-492;  Phoenix 
Ins.  Co.  v.  Findley,  59-591;  Case, 
etc.,  v.  Haven,  65-359;  Watson  v. 
Moeller,  63-161;  Wire  v.  Foster,  62- 
114;  Norman  v.  Winch,  65-263; 
Madison  County  v.  Tullis,  69-720; 
Thorpe  v.  Bradley,  75-50;  Stuart  v. 
Trotter,  75-96;  Cook  v.  C.,  M.  &  St. 
P.  R.  Co.,  83-278;  Harwood  v.  Lee, 
85-622;  Schwartz  v.  Davis,  90-324; 
Tank  v.  Rohweder,  67  N.  W.,  106; 
Crawford  v.  Bergen,  91-675;  Wil- 
liams v.  Brown,  76-643;  Faulkner 
v.  Closter,  79-15;  Fleming  v. 
Stearns,  79-256. 

so  State  v.  Stickley,  41-.J2; 
Prichard  v.  Hopkins,  52-120;  Rock 
v.  Wallace,  15-379;  Wilson  v.  Mc- 
Adams,  10-590;  Tyler  v.  Lang- 
worthy,  37-555;  Anderson  v.  Cahill, 
65-252;  Putney  v.  O'Brien,  53-117; 
Henderson  v.  C.,  R.  I.  &  P.  R.  Co., 
48-216;  State  v.  Eifert,  C5  N.  W., 
309;  Langhammer  v.  City  of  Man- 
chester, 68  N.  W.,  688. 


§§  1372,  1373.]     APPELLATE  PROCEEDINGS.  617 

mitted.81  And  subsequent  circumstances  may  render 
error  without  prejudice  to  the  complainant.82 

§  1372,  When  rulings  upon  demurrer  or  with 
reference  to  pleadings  will  be  without  prejudice. — If 
a  demurrer  is  based  on  an  insufficient  ground  and  sus- 
tained, it  will  be  without  prejudice  if  it  appears  that 
there  could  have  been  no  recovery  upon  the  count  to 
which  the  demurrer  was  directed;83  and  where  the  ac- 
tion is  determined  in  favor  of  the  party  complaining, 
error  in  sustaining  a  demurrer  to  a  portion  of  the  peti- 
tion will  be  without  prejudice,84  and  the  same  is  true 
when  the  issue  presented  and  ruled  out  on  demurrer,  is 
elsewhere  presented  and  submitted  to  the  jury.85  And 
when  the  party  amends  after  a  demurrer  is  sustained;86 
and  when  a  demurrer  is  overruled,  but  under  the  in- 
structions the  issue  presented  in  the  demurrer  was  ex- 
cluded from  the  jury.87  Error  in  striking  an  answer  from 
the  files  is  cured  by  permitting  the  defendant  to  prove 
the  defense  set  up  therein  when  the  evidence  fails  to 
establish  it,88  and  refusing  to  permit  an  amended  answTer 
to  be  filed  will  be  error  without  prejudice,  when  the  facts 
alleged  therein  might  have  been  proved  under  the  orig- 
inal answer.89 

§  1373.  Of  error  without  prejudice  in  rulings  upon 
the  evidence,  etc. — If  the  error  in  the  admission  or  re- 
jection of  testimony  has  worked  no  prejudice  to  the 
party  complaining,  the  cause  will  not  be  reversed  on  ac- 
count pf  such  error.90  The  exclusion  of  evidence  is  error 

si  Williams    v.    Brown,    28-247;  ss  Childs  v.  Dobbins,  61-109. 

Van    Horn    v     Overman,    75-421;  s*  Scott  v.  Union  County,  63-583. 

Amos  v.  Buck,  75-651;    Way  v.  C.  ^  McKeever  v.  Jenks,  59-300. 

&  N.  W.  R.  Co.,  76-393;   Seekel  v.  se  Gillis  v.   Matthews,  4  G.   Gr., 

Norman,   78-254;    State  v.    Shank,  254. 

79-47;    In   re   Assignment   of   Rea,  ST  Flannagan  v.  McWilliams,  52- 

82-231;  Cahalan  v.  Cahalan,  82-416;  148;    see  Dist.   Twp.  v.  Ind.  Dist., 

Rea    v.    Scully,    76-343;     State    v.  63-188. 

Craig,  78-637;   Hurlbut  v.  Harden-  ss  McNamara  v.  Estes,  22-246. 

brook,  85-606.  *»  Hough    v.    Housel,    20-19;    see 

82  State  v.  Waterloo  Sav.  Bk.,  39-  Tabor  v.  Foy,  56-539. 

706;  Cutcomp  v.  Utt,  60-156:  Ham-  «o  Woodward    v.    Horst,    10-120; 

mitt  v.  Coffin,  3  G.  Gr.,  205;   Wit-  Quinton    v.     Van     Tuyl,     30-554; 

more  v.   Burgan,   70-161;    State  v.  Cooper  v.  Mills  County,  69-350;  An- 

Powell,  70  N.  W.,  592.  drews  v.  Woodcock,  14-397;  Drath 


618 


APPELLATE  PROCEEDINGS. 


[§1373. 


without  prejudice  when  the  witness  is  afterward  al- 
lowed to  testify  fully  as  to  the  matters  called  for  and  ob- 
jected to.91  And  error  in  allowing  the  introduction  of 
only  a  portion  of  a  deposition  is  cured  if  the  entire  depo- 
sition is  afterward  introduced.92 

And  error  in  overruling  a  motion  to  suppress  a  depo- 
sition will  be  without  prejudice  when  the  witness  testi- 
fies in  person,  and  his  testimony  is  more  favorable  to  the 
party  complaining  than  that  in  the  deposition.93  Xor 
will  it  be  reversible  error  to  admit  evidence  to  establish 
a  fact  when  it  is  sufficiently  established  by  other  com- 
petent evidence.94  And  error  in  rejecting  evidence  will 
be  without  prejudice  wrhere  the  facts  sought  to  be  proved 
by  such  evidence  are  otherwise  fully  established.95  A 
cause  will  not  be  reversed  on  account  of  a  mere  abstract 
error  which  could  have  worked  no  prejudice.96  And 


v.  Deitz,  15-436;  Pelamourges  v. 
Clark,  9-1;  Chambers  v.  Grout,  63- 
342;  McKenzie  v.  Kilter,  27-254; 
Curl  v.  C.,  R.  I.  &  P.  R.  Co.,  63- 
417;  Weitz  v.  Ewen,  50-34;  Walsh 
v.  JEtna  L.  Ins.  Co.,  30-133;  Mur- 
ray v.  Wells,  57-26;  Robinson  v. 
Keith,  25-321;  Kelley  v.  Ford,  4- 
140;  State  v.  Hallett,  63-259;  Bray- 
ley  v.  Ross,  33-505;  Courtwright 
v.  Strickler,  37-382;  Jaques  v.  Sax, 
39-367;  Holt  v.  Brown,  63-319;  Bar- 
ker v.  Kuhn,  38-392;  State  v. 
Smith,  46-670;  Langford  v.  Ottum- 
wa  W.  P.  Co.,  59-283;  Amsden  v. 
D.  &  S.  C.  R.  Co.,  13-132;  Asbach 
v.  C.,  B.  &  Q.  R.  Co.,  86-101;  Be- 
ver  v.  Spangler,  93-576;  State  v. 
Smith,  68  N.  W.,  428;  Ludwig  v. 
Blackshere,  71  N.  W.,  356;  Hauser 
v.  Griffith,  71  N.  W.,  223. 

m  Keough  v.  Scott  County,  28- 
337;  State  v.  Geddis,  42-264;  Alli- 
son v.  C.  &  N.  R.  Co.,  42-274;  Ham 
v.  W.,  I.  &  N.  R.  Co.,  61-716;  Reed 
v.  C.,  R.  I.  &  P.  R.  Co.,  57-23; 
Abell  v.  Cross,  17-171;  State  v.  Nel- 
son, 58-208;  Belair  v.  C.  &  N.  W.  R. 
Co.,  43-662;  Sprague  v.  Atlee,  81-1; 
Miller  v.  James,  86-242;  Brown  v. 
S.  C.  &  P.  R.  Co.,  62  N.  W.,  737; 
Rosenthal  v.  Miller,  79-130;  Bailey 
v.  Bailey,  63  N.  W.,  341;  Nagle  v. 
Fulner,  67  N.  W.,  369;  Kelly  v. 


Stone,  62  N.  W.,  842;  Orr  v.  Rail- 
way, 62  N.  W.,  851;  Trimble  v. 
Tantlinger,  69  N.  W.,  145;  Strong 
v.  Railway,  62-799. 

»2  Bixby  v.  Cascaddon,  63-164; 
Langhammer  v.  City  of  Manches- 
ter, 68  N.  W.,  688. 

»3  Curry  v.  Allen,   60-387. 

9*McCrary  v.  Deming,  38-527; 
Le  Grand  Q.  Co.  v.  Reichard,  40- 
161;  Wallace  v.  Wallace,  62-651; 
Jackson  v.  Boyles,  64-428;  Stone 
v.  Ballingall,  41-291;  Des  Moines 
v.  Cassady,  21-570;  Key  v.  Des 
Moines  Ins.  Co.,  77-174;  Seltz  v. 
Hawkeye  Ins.  Co.,  71-710;  Morgan 
v.  Wifley,  71-212;  but  see  Oppen- 
heimer  v.  Barr,  71-525;  Muir  v. 
Miller,  82-700;  Bartlett  v.  Fore- 
mans  Fund  Ins.  Co.,  77-155;  State 
v.  Black,  59-390;  Darnell  v.  Ben- 
nett, 67  N.  W.,  273;  Ward  v.  Rail- 
road, 65  N.  W.,  999. 

as  State  v.  Woodson,  41-425; 
Hoadley  v.  Hammond,  63-599; 
State  v.  Pratt,  40-631;  Bartlett  v. 
Foremans  Fund  Ins.  Co.,  77-155; 
Parcell  v.  Reynolds,  71-623;  Blot- 
cky  v.  Caplan,  91-352. 

96  Hubbard  v.  Mason  City,  60- 
400;  see  Brown  v.  Hendrickson,  69- 
749;  State  v.  Middleham,  62-150; 
State  v.  Graham,  51-72;  Cook  Mfg. 
Co.  v.  Randall,  62-244. 


§§  137-1,  1375.]     APPELLATE  PROCEEDINGS.  619 

error  in  the  admission  of  evidence  may  be  cured  by  the 
court  instructing  the  jury  plainly  to  disregard  it.97  The 
admission  of  incompetent  evidence  as  to  speculative 
damages  is  without  prejudice  where  the  verdict  is  for 
nominal  damages  only.98  The  admission  of  incompetent 
testimony  is  not  prejudicial  where  it  is  subsequently 
stricken  out  on  motion.99  Where  on  a  trial  by  the  court 
incompetent  evidence  is  admitted,  subject  to  plaintiff's 
.objection,  and  judgment  is  rendered  for  plaintiff,  it  will 
be  presumed  on  appeal  that  the  trial  court  gave  the  evi- 
dence no  consideration.1  A  party  can  not  complain  of 
evidence  elicited  by  himself.2 

§  1374.  Of  error  without  prejudice  in  the  giving 
of  instructions.  —  Causes  will  not  be  reversed  for  the 
giving  of  erroneous  instructions  which  could  have 
worked  no  prejudice  to  the  one  complaining.3  And  such 
erroneous  instructions  will  be  without  prejudice  when 
the  verdict  is  in  favor  of  the  party  complaining,  or  it  is 
apparent  that  the  jury  were  not  influenced  by  them.4 
Error  in  general  instructions  to  the  jury  as  to  matters 
of  law  will  be  deemed  without  prejudice  where  the  ver- 
dict of  the  jury  is  special.5  The  error  complained  of,  to 
justify  a  reversal,  must  be  shown  to  have  resulted  in 
prejudice.6 

§  1375.  Of  the  discretion  of  the  court  below,  etc. 
—This  subject  has  been  treated  of  to  a  considerable  ex- 

9T  Cook   v.   Robinson,  42-474.  McGregor   v.    Armill,   2-30;     First 
-  93  De  Goey  v.  Van  Wyk,  66  N.  Nat.  Bk.  v.  Breese,  39-640;  Gwinn 
W.,  787.  v.  Crawford,  42-63;  Peake  v.  Con- 
es State  v.  Oden,  69  N.  W.,  270.  Ian,  43-297;    Parkhurst  v.  Mastel- 

1  Wright  v.  Farmers,  etc.,  65  N.  ler,   57-474;    Chlein   v.   Kabat,   72- 
W.,   308.  291. 

2  Nagle  v.  Fulher,  67  N.  W.,  369.          *  Dunham  v.  Dennis,  9-543;  Hall 
s  McKay  v.  Leonard,  17-569;  Cla-      v.  Stewart,  58-681;  Hall  v.  Ballou, 

gett  v.  Conlee,  16-487;  Ocheltree  v.  58-585;  Lathrop  v.  C.  I.  R.  Co.,  69- 

Carl,  23-394;  Hunt  v.  C.  &  N.  W.  105;    Brentner  v.  C.,  M.  &  St.   P. 

R.  Co.,  26-363;   Horr  v.  Reed,  20-  R.   Co.,   68-530;    Myers  v.  Wright, 

591;  Thompson  v.  Blanchard,  2-44;  44-38;  see  Tuck  v.  Singer  Mfg.  Co., 

Blackburn  v.  Powers,  40-681;  State  67-576. 

v.  Hart,  67-142;   Sullivan  v.  Finn,  s  Wilkinson  v.  Conn.  M.  L.  Ins. 

4  G.  Gr.,  544;  Farwell  v.  Salpaugh,  Co.,1  30-119;    Boals  v.   George,   30- 

32-582;    Cedar  F.  &  M.   R.   Co.   v.  601. 

Rich,    33-113;    Olson   v.    Neal,    63-  «  Shannon  v.  Scott,  40-629;  Eyser 

214;     Martin    v.    Algona,    40-390;  v.  Weissgerber,  2-463;   cases  here- 

Clinton  Nat.  Bk.  v.  Graves,  48-228;  tofore  cited. 


APPELLATE  PROCEEDINGS.  [§  1376. 

tent  in  several  chapters,  and  we  shall  now  refer  to  a  few 
of  the  cases  only.  Generally  it  may  be  said  that  motions 
for  new  trials  are  addressed  to  the  sound  discretion  of 
the  court,  and  its  action  will  not  be  interfered  with  un- 
less it  is  manifest  that  it  has  abused  such  discretion.7 
The  supreme  court  will  not,  on  appeal,  disturb  the  ver- 
dict of  a  jury  when  the  evidence  is  conflicting,  unless  it 
appears  to  be  the  result  of  passion  or  prejudice.8  And  a 
finding  which  has  support  in  the  evidence  and  where  the 
evidence  is  conflicting  will  not  be  disturbed  on  appeal.9 
A  verdict  will  be  set  aside  on  appeal  when  a  manifest 
injustice  would  be  done  by  permitting  it  to  stand.10 

§  1376.  Of  the  petition  for  rehearing— When  filed 
— What  confined  to. — Xo  petition  for  rehearing  can  be 
filed  after  sixty  days  from  the  filing  of  the  opinion  or 
decision  of  the  supreme  court.11  Written  notice  of  the 
intention  to  petition  for  a  rehearing  must  be  served  on 
the  opposite  party,  or  his  attorney,  and  the  clerk  of  the 
supreme  court  within  thirty  days'  after  the  filing  of  the 
opinion  or  decision,  and  if  no  such  notice  is  served  the 
petition  for  rehearing  can  not  be  filed  after  the  expira- 
tion of  thirty  days  from  the  time  the  opinion  is  filed.12 

If  a  petition  for  a  rehearing  is  filed  it  will  suspend  the 
decision  or  procedendo,  if  the  court  on  its  presentation, 

7  Pickering  v.  Kirkpatrick,  32-  70-122;  State  v.  Lauderbeck,  65  N. 
163;  N.  Y.  P.  Co.  v.  Muller,  38-  W.,  158;  Farmers  Co-Operative 
552;  Donahue  v.  Lannan,  70-73;  Soc.,  etc.,  v.  German  Ins.  Co.,  66 
Chambers  v.  Brown,  69-213;  Sher-  N.  W.,  878;  Leek  v.  Chesley,  67  N. 
mer  v.  Gendt,  52-742;  Hill  v.  Dens-  W.,  580;  Duer  v.  Allen,  64  N.  W., 
linger,  61-640;  Latton  v.  C.,  R.  I.  682;  Taylor  v.  Western  Union  Tel. 
&  P.  R.  Co.,  69-338;  Moran  v.  Har-  Co.,  64  N.  W.,  660;  Schultz  v. 
ris,  63-390;  Rogers  v.  Winch,  65-  Klatt,  62  N.  W.,  784;  Bever  v. 
168;  Primmer  v.  Primmer,  75-415;  Spangler,  61  N.  W.,  1072. 
Saar  v.  Finken,  79-61;  Bever  v.  »  McConkie  v.  Babcock,  70  N.  W., 
Spangler,  93-576;  Rogers  v.  Winch,  103;  Creamery  Pkg.  Co.  v.  Union 
76-546;  Dalhofl  v.  Bennett,  77-140;  Bk.  of  Wilton,  69  N.  W.,  676;  Phil- 
Taylor  v.  C.,  M.  &  St.  P.  R.  Co.,  lips  v.  Lund,  70  N.  W.,  1130;  Bus- 
80-431;  Fulliam  v.  Hagens,  83-763;  sard  v.  Bullit,  64  N.  W.,  658;  Mis- 
Arctic  King  Ref.  Co.  v.  Kelley,  63  souri  K.  &  T.  Trust  Co.  v.  Gantt, 
N.  W.,  676;  Murray  v.  Weber,  92-  62  N.  W.,  794. 
757;  Lyons  v.  Harris,  73-292.  10  Chicago  Cottage  Organ  Co.  v. 

a  Harger  v.  Spofford,  46-11;  Wit-  Caldwell,  63  N.  W.,  336. 

ter  v.  Little,  66-43X;  Maxon  v.  C.,  n  Rules,  Sec.  60;  Code,  Sec.  4149. 

M.  &  St.  P.  R.  Co.,  67-226;  Melhop  12  Code,  Sec.  4149;  Rules,  Sec.  61. 
v.  Doan,  36-630;  French  v.  Real, 


§  1377.]  APPELLATE  PROCEEDINGS.  621 

or  one  of  the  judges  shall  so  order,  in  either  of  which 
cases  such  decision  and  procedendo  will  be  suspended 
until  the  final  determination  of  the  petition.13  Matters 
which  were  not  in  the  original  case  can  not  be  insisted 
upon  in  the  petition  for  a  rehearing,  nor  can  the  peti- 
tioner make  a  new  case.14  Nor  can  the  court  consider  an 
additional  abstract  or  amended  record  not  before  the 
court  on  the  first  hearing.15  The  discovery  of  additional 
evidence  since  the  trial  in  the  court  Jbelow  is  no  ground 
for  a  rehearing.16  The  case  must  be  heard  on  the  peti- 
tion on  the  same  record  as  on  the  former  trial.17  A  fail- 
ure of  the  abstract  to  show  service  of  notice  of  appeal 
cannot  be  cured  on  rehearing.18  No  particular  form  is 
necessary  for  a  petition  for  a  rehearing.  The  petition 
for  rehearing  must  be  printed  and,  with  proof  of  service 
thereof  on  the  opposite  party,  or  his  attorney,  be  filed 
with  the  clerk  of  the  court  within  sixty  days  after  the 
opinion  is  filed,  and  may  be  made  the  argument  or  brief 
of  authorities  relied  upon  for  a  rehearing.  It  must  in- 
clude a  copy  of  the  opinion  or  decision  of  the  court  to 
which  objection  is  made,  or  a  reference  to  the  volume 
and  page  of  the  Northwestern  Reporter  in  which  it  has 
been  printed.  The  adverse  party  may  file  an  argument 
in  response.19  If  this  is  not  done  the  petition  for  rehear- 
ing will  be  stricken  from  the  files.20 

§  1377.  Of  the  argument. — A  copy  of  the  petition 
must  be  served  upon  the  attorney  of  the  adverse  party, 
and  if  there  be  more  than  one,  upon  the  attorney  of  each 
of  them,  within  sixty  days  after  the  opinion  or  decision  is 
filed;  and  twelve  copies  must  be  delivered  to  the  clerk 
of  the  court.  If  there  be  a  printed  argument  in  resist- 
ance of  the  petition,  a  copy  thereof  nyust  be  served  upon 
the  attorney  for  the  petitioner  ten  days  before  the  day 

is  Code,  Sec.  4148;  Rules,  Sec.  65.  Falls  &  S.  C.  R.  Co.,  85-180;   Bar- 

!•»  Hintrager  v.  Hennessy,  46-600;  ber  v.  Scott,  92-52. 

Mann  v.  S.  C.  &  P.  R.  Co.,  46-637.  i^Zuver  v.  Lyons,  40-510. 

is  Cramer  v.  Burlington,  45-627;  i"  Martin  v.  Cole,  38-141. 

Nixon  v.  Downey,  49-166;  Parsons  18  Iowa  City  v.  Johnson  County, 

v.  Parsons,  66-754;  Simplot  v.  Du-  68   N.   W.,   815. 

tuque,  49-630;  McDermott  v.  Iowa  i»  Code,  Sec.  4149;  Rules,  Sec.  62. 

20  Kervick  v.  Mitchell,  68-273. 


G22  APPELLATE    PROCEEDINGS. 

fixed  for  the  hearing  of  the  cause,  and  twelve  copies 
must  be  delivered  to  the  clerk  of  the  court.  The  cause 
will  be  placed  on  the  docket  and  assigned  for  hearing  at 
the  next  term,  the  first  day  of  which  must  not  be  less 
than  twenty  days  after  the  filing  of  the  petition.  If 
the  party  applying  for  a  rehearing  gives  notice  of  oral, 
argument  in  his  petition,  both  parties  will  be  entitled 
to  be  heard  orally,  unless  the  party  giving  notice  waive 
oral  argument.21  The  court  will  not  grant  a  rehearing 
at  the  instance  of  a  party  who  failed  to  file  or  make  an 
argument  when  the  cause  was  submitted,  but  may,  on 
its  own  motion,  order  a  rehearing  to  correct  an  error.22 
After  the  opposite  party  has  filed  a  reply  to  a  petition  for 
rehearing,  no  further  argument  can  be  filed.23  The  stat- 
ute does  not  authorize  the  filing  of  a  bill  of  review.24 

§  1378.  Of  the  action  of  the  court. — If  a  curative 
act  is  passed  while  a  case  in  which  the  defect  sought  to 
be  cured  is  raised  is  pending  in  the  supreme  court  on  re- 
hearing, the  case  will  be  treated  as  if  no  opinion  had  been 
previously  filed,  and  the  defect  will  be  deemed  cured.25 
Where  the  judgment  on  appeal  stands  affirmed  by  rea- 
son of  a  divided  court,  such  affirmance  is  subject  to  re- 
consideration on  rehearing.  If,  on  rehearing  of  a  cause, 
the  court  is  equally  divided  as  to  whether  the  former 
opinion  should  be  adhered  to,  the  cause  will  stand  as  if 
the  court  had  been  equally  divided  on  the  first  hearing, 
and  the  judgment  will  be  affirmed.26  When,  after  the 
decision  of  a  cause  by  the  supreme  court,  a  procedendo 
was  filed  in  the  court  below,  and  the  proper  steps  taken 
to  remove  the  cause  to  the  federal  court,  after  which,  and 
within  the  proper  time,  a  petition  for  rehearing  was  filed 
in  the  supreme  court  and  allowed,  it  was  held  on  a  mo- 
tion to  dismiss  in  tbe  supreme  court  that  the  cause  was 
pending  there  and  had  not  been  removed.27  When  a  re- 

21  Code,   Sec.   4149;    Rules,  Sees.          24  McGregor  v.  Gardner,  16-538. 
63,  64.  25  Iowa  R.  L.  Co.  v.  Sac  County, 

22  Wachendorf  v.  Lancaster,  61-      39-124. 

509.  20  Zeigler  v.  Vance,  3-528;  Rich- 

23  Webster   County   v.    Hutchin-      ards  v.  Burden,  59-723. 

son,  60-721.  2-  McKinley  v.   C.   &   N.    W.   R. 


§  1383.]  APPELLATE  PROCEEDINGS.  623 

hearing  is  ordered  the  first  opinion  is  suspended  and  has 
no  further  effect  except  as  it  may  be  incorporated  in  or 
approved  by  the  opinion  finally  filed  after  the  rehear- 
ing.28 Where  error  for  which  judgment  is  reversed  in- 
volves a  possible  excess  of  two  hundred  dollars  in  the 
amount  of  plaintiff's  recovery,  his  offer  in  the  petition 
for  rehearing  to  remit  that  amount,  if  former  opinion  is 
adhered  to,  will  be  acted  on  and  the  judgment  so  modi- 
fied will  be  affirmed.29 

Co.,  44-314;  Railroad  Co.  v.  McKin-      Stewart  v.  Stewart,  65  N.  W.,  976; 

ley,  99  U.  S.  S.  Ct.  Rep.,  147.  In  re  Peets  Estate,  68  N.  W.,  705. 

as  Pitkin  v.  Peet,  64  N.  W.,  793;          29  Irlbeck  v.  Bierl,  70  N.  W.,  206. 


CHAPTER  LXXXV. 

STATUTES  AND  RULES  REGULATING  THE  PRACTICE  IN  THE 
SUPREME  COURT. 

Sec.  1379.  Of  the  adoption  of  the  rules. 

1380.  Of   the   organization. 

1381.  Of  the  jurisdiction. 

1382.  Of  the  terms. 

1383.  Of  appeals. 

1384.  Of  docketing  causes. 

1385.  Of  advancing  causes.  ' 

1386.  Of  abstracts,   transcripts   and  records. 

1387.  Of  supersedeas   bonds. 

1388.  Of  the  trial,  decision  and  execution. 

1389.  Of  motions. 

1390.  Of  briefs  and  arguments. 

1391.  Of  decisions  and  opinions. 

1392.  Of  records  and  reports. 

1393.  Of  judgments  and  decrees. 

1394.  Of    executions. 

1395.  Of  rehearings. 

1396.  Of  preparing  and  printing  abstracts,  transcripts,  briefs,  ar- 

guments and  petitions  for  rehearing. 

1397.  Of  appeals  in  criminal  actions. 

1398.  Of  the  construction  and  modification  of  the  rules. 

1399.  Of  the  distribution  of  printed  matter. 

1400.  Of  the  return  of  papers  and  exhibits. 

1401.  Of  costs. 

1402.  Of  the  admission  of  attorneys. 

Section  1379.  Of  the  adoption  of  the  rules. — The 
last  legislature  passed  a  joint  resolution  requesting  the 
judges  of  the  supreme  court  to  revise  the  rules  of  the 
court.  In  view  of  the  adoption  of  a  new  code,  wherein 
some  material  changes  are  made  in  the  practice,  the  re- 
quest was  timely.  A  committee  consisting  of  three  mem- 
bers of  the  court  was  appointed  to  make  the  revision  and 
report  to  the  full  court.  The}'  completed  their  work 
and  reported  at  the  May  term,  1897,  rules  which,  after 

624 


§§  1380,   1381.]      PKACTICE   IX   SUPBEME  COURT.  625 

.  some  slight  modifications,  were  adopted  by  the  court.  It 
seems  quite  proper  in  a  work  like  this  to  set  out  in  full 
the  rules.  It  was  the  author's  intention  to  annotate 
these  rules,  as,  however,  many  of  them  have  already  been 
referred  to  and  annotated  in  prior  chapters,  it  is  deemed 
best  to  refer  to  such  prior  annotations  without  repeating 
them.  Where  it  appears  necessary,  comments  are  made 
in  addition  to  what  has  been  heretofore  said.  These 
rules  took  effect  on  the  first  day  of  October,  1897,  and 
are  printed  below  exactly  as  they  appear  in  the  official 
edition. 

§  1380.  Of  the  organization. — "Section  1.  The 
supreme  court  shall  consist  of  six  judges,  four  of  whom 
constitute  a  quorum  for  the  transaction  of  business,  but 
one  alone  may  adjourn  from  day  to  day,  or  to  a  particular 
day,  or  until  the  next  term.  [Code,  §  193.] 

Sec.  2.  The  judge  whose  term  first  expires  shall  be 
the  chief  justice,  and  so  on  in  rotation.  [Const.,  art.  V, 
§  3.]"1 

§  1381.  Of  the  jurisdiction.  —  "Sec.  3.  The  su- 
preme court  has  appellate  jurisdiction  over  all  judg- 
ments and  decisions  of  all  courts  of  record,  except  as 
otherwise  provided  by  law.  [Code,  §  4100.]2 

Sec.  4.  An  appeal  may  also  be  taken  to  the  supreme 
court  from: 

1.  An  order  made  affecting  a  substantial  right  in  an 
action,  when  such  order,  in  effect,  determines  the  action 
and  prevents  a  judgment  from  which  an  appeal  might  be 
taken; 

2.  A  final  order  made  in  special  actions  affecting  a 
substantial  right  therein,  or  made  on  a  summary  appli- 
cation in  an  action  after  judgment; 

3.  An  order  which  grants  or  refuses,   continues  or 
modifies  a  provisional  remedy;    grants  or  refuses,  dis- 
solves, or  refuses  to  dissolve  an  injunction  or  attach- 
ment;  or  grants  or  refuses  a  new  trial;   or  sustains  or 
overrules  a  demurrer; 

i  Sec.  17.  2  Sees.  1314,  1315,  1353. 

Vol.  11-40 


PRACTICE  IN  SUPREME  COURT.   [§§  1382,  1383. 

4.  An    intermediate  order  involving  the    merits    or 
materially  affecting  the  final  decision; 

5.  An  order  or  judgment  on  habeas  corpus.     [Code, 
§  4101.]3 

Sec.  5.  If  any  of  the  above  orders  or  judgments  are 
made  or  rendered  by  a  judge,  the  same  are  reviewable, 
the  same  as  if  made  by  a  court.  [Code,  §  4102.]4 

Sec.  6.  The  supreme  court  has  power  to  issue  all 
writs  ajid  processes  necessan-  to  secure  justice  to  par- 
ties, and  to  enforce  its  appellate  jurisdiction;  and  it  may 
exercise  supervisory  control  over  all  inferior  judicial 
tribunals.  [Const.,  art.  V.,  §  4;  Code,  §  4109.] 

Sec.  7.  It  may  enforce  its  mandates  upon  inferior 
courts  and  officers  by  fine  and  imprisonment,  which  im- 
prisonment may  continue  until  its  mandates  are  obeyed. 
[Code,  §  4147.]" 

§  1382.  Of  the  terms. — "Sec.  8.  The  supreme  court 
shall  be  held  at  the  seat  of  government,  and  shall  con- 
vene and  hold  three  terms  each  year,  one  of  which  shall 
commence  on  the  third  Tuesday  in  January,  one  on  the 
second  Tuesday  in  May,  and  one  on  the  first  Tuesday  in 
October.  Each  of  said  terms  of  court  shall  be  for  the 
submission  and  determination  of  causes  and  for  the 
transaction  of  such  other  business  as  shall  properly 
come  before  the  court.  All  causes  on  the  docket  shall 
be  heard  at  each  term  unless  continued  or  othewise  dis- 
posed of  by  order  of  the  court.  The  court  shall  remain 
in  session  so  far  as  practicable  until  it  is  determined 
what  the  opinion  of  the  court  shall  be  in  all  causes  sub- 
mitted to  it,  except  in  causes  where  a  re-arguinent  is 
ordered.  Judgments  of  affirmance,  rulings  and  orders 
in  causes  submitted,  and  orders  authorized  by  law  may 
be  made  and  entered  by  the  court  at  any  time  regardless 
of  the  terms  of  court.  [Code,  §  192.]"5 

§  1383.  Of  appeals.  —  "Sec.  9.  Appeals  from  the 
superior  and  district  courts  may  be  taken  to  the  su- 

»  Sec.  1314.  B  Sec.  18. 

*  Sees.  22,  1314. 


§  1383.]         PRACTICE  IX  SUPREME  COUET.  627 

preme  court  at  any  time  within  six  months  from  the 
rendition  of  the  judgment  or  order  appealed  from,  and 
not  afterward.  No  appeal  shall  be  taken  in  any  cause 
in  which  the  amount  in  controversy  between  the  parties, 
as  shown  by  the  pleadings,  does  not  exceed  one  hundred 
dollars,  unless  the  trial  judge  shall,  during  the  term  in 
which  judgment  is  entered,  certify  that  the  cause  is  one 
in  which  the  appeal  should  be  allowed,  and  upon  such 
certificate  being  filed  the  same  shall  be  appealable  re- 
gardless of  the  amount  in  controversy,  but  this  limita- 
tion shall  not  affect  the  right  of  appeal  in  any  action  in 
which  an  interest  in  real  estate  is  involved,  nor  shall  the 
right  of  appeal  be  affected  by  the  remission  of  any  part 
of  the  verdict  or  judgment  returned  or  rendered.  [Code, 
§  4110.]6 

Sec.  10.  A  part  of  several  co-parties  may  appeal; 
but  in  such  case  they  must  serve  notice  of  the  appeal 
upon  those  not  joining  therein  and  file  proof  thereof 
with  the  clerk  of  the  supreme  court.  [Code,  §  4111.]7 

Sec.  11.  Co-parties  refusing  to  join  in  an  appeal  can- 
not afterwards  appeal  or  derive  any  benefit  therefrom, 
unless  from  the  necessity  of  the  case,  but  they  shall  be 
held  to  have  joined,  and  be  liable  for  their  proportion  of 
the  costs  unless  they  appear  and  object  thereto.  [Code, 
§  4112.]8 

Sec.  12.  The  death  of  one  or  all  of  the  parties  shall 
not  cause  the  proceedings  to  abate,  but  the  names  of  the 
proper  persons  shall  be  substituted,  as  is  provided  in 
such  cases  in  the  district  court,  and  the  case  may  pro- 
ceed. The  court  may  also,  in  such  case,  grant  a  contin- 
uance when  such  a  course  will  be  calculated  to  promote 
the  ends  of  justice.  [Code,  §  4150.]9 

Sec.  13.  An  appeal  is  taken  and  perfected  by  the 
service  of  a  notice  in  writing  on  the  adverse  party,  his 
agent,  or  any  attorney  who  appeared  for  him  in  the  case 
in  the  court  below,  and  also  upon  the  clerk  of  the  court 

e  Sees.  22,  1313,  1316,  1319.         s  Sec.  1326. 
7  Sec.  1326.  9  Sec.  1347. 


628  PRACTICE  IX  SUPREME  COURT.          [§  1384. 

wherein  the  proceedings  were  had,  stating  the  appeal 
from  the  same,  or  from  some  specific  part  thereof,  defin- 
ing such  part.  [Code,  §  4114.]10 

Sec.  14.  A  notice  of  appeal  shall  be  served  and  re- 
turn made  thereon  in  the  same  manner  as  an  original 
notice  in  a  civil  action  and  filed  in  the  office  of  the  clerk 
in  which  the  judgment  or  order  appealed  from  wras  ren- 
dered or  made.  All  other  notices  connected  with  or 
growing  out  of  the  appeal  shall  be  served  and  the  return 
made  in  like  manner  and  filed  in  the  office  of  the  clerk 
of  the  supreme  court  and  all  notices  provided  for  in  this 
section  become  a  part  of  the  record  in  the  case  on  being 
filed.  [Code,  §  4115.]"11 

§  1384.  Of  docketing  causes.— "Sec.  15.  A  notice 
of  appeal  must  be  served  thirty,  and  the  cause  filed  and 
docketed  fifteen,  days  before  the  first  day  of  the  next 
term  of  the  supreme  court,  or  the  same  shall  not  be  sub- 
mitted at  that  term,  unless  the  parties  consent  thereto. 
If  the  appeal  is  taken  less  than  thirty  days  before  the 
term,  it  must  be  so  filed  and  docketed  for  the  next  suc- 
ceeding term.  [Code,  §  4116.]12 

Sec.  16.  The  cause  on  appeal  shall  be  docketed  as 
it  was  in  the  court  below,  and  the  party  taking  the  ap- 
peal shall  be  called  the  appellant,  and  the  other  party 
the  appellee.  No  case  shall  be  docketed  until  the  fees 
provided  by  law  therefor  have  been  paid.  [Code,  §§  4108, 
4121.]13 

Sec.  17.  The  clerk  shall  docket  the  causes  as  they 
are  filed  in  his  office,  and  shall  arrange  and  set  a  proper 
number  for  trial  for  each  day  of  the  term,  placing  to- 
gether those  from  the  same  judicial  district.  No  cause 
shall  be  docketed  unless  the  abstract  is  filed  fifteen  days 
before  the  first  day  of  the  term  at  which  the  cause  is  set 
down  for  trial  unless  otherwise  ordered  by  the  court. 
If  the  abstract  is  not  so  filed,  the  case  shall  be  docketed 

10  Sec.  1321.  12  Sees.  1321,  1322. 

11  Sec.  1322.  is  Sec.  1346. 


§§  1385,  1386.]    PEACTICE  IN  SUPREME  COURT.  C29 

for  the  next  succeeding  term.    [Code,  §§  4117,  4119;  Old 
Rules,  §  114.]14 

Sec.  18.  Immediately  after  the  time  expires  during 
which  causes  may  be  docketed  for  trial  at  a  term  of 
court,  the  clerk  shall  make  and  cause  to  be  printed,  with- 
out delay,  the  docket  for  the  term,  which  shall  give  all 
causes,  whether  continuances  or  appearances,  for  trial 
at  such  term,  which  shall  designate  the  number,  the 
party  appealing,  the  court  and  county  from  which  the 
appeal  is  brought,  the  counsel  of  the  parties,  the  day 
each  cause  is  assigned  for  trial,  and  such  other  matter 
for  information  of  the  court  and  attorneys  as  may  be 
conveniently  given.  He  shall  forward  to  each  judge  of 
the  court,  to  each  attorney  having  causes  at  the  term, 
and  to  the  clerk  of  the  district  and  superior  courts  of 
each  county,  a  copy  of  said  docket.  [Old  Rules,  §  Ho.]"15 

§  1385.  Of  advancing  causes. — "Sec.  19.  If  a  cause 
involves  the  decision  of  a  question  of  public  importance, 
or  rights  which  are  likely  to  be  lost  or  greatly  impaired 
by  delay,  the  court  will,  in  its  discretion,  upon  motion 
supported  by  affidavit,  order  the  submission  of  the  cause 
at  a  term  in  advance  of  that  at  which  it  would  other- 
wise be  submitted." 

Prior  to  the  adoption  of  the  above  rule  causes  had  been 
advanced  when  such  action  seemed  necessary. 

It  is  not  possible  to  frame  a  rule  upon  this  subject 
which  will  be  explicit  and  state  just  what  causes  may 
be  advanced.  Heretofore  causes  have  been  advanced 
which  involved  a  contest  over  a  public  office;  or  of  the 
collection  of  public  taxes  where  many  persons  were  in- 
terested; or  where  the  constitutionality  or  legality  of  a 
public  statute  was  involved ;  or  where  a  right  of  redemp- 
tion would  expire  before  a  cause  could  be  heard  and  de- 
cided. 

§  1386.  Of  abstracts,  transcripts  and  records.— 
"Sec.  20.  At  least  thirty  days  before  the  day  assigned 

i*  Sec.  1346.  15  Sec.  1346. 


630  PEACTICE  IX  SUPREME  COURT.          [§  138G. 

for  the  hearing  of  a  cause,  the  appellant  shall  serve  upon 
each  appellee,  or  his  attorney,  a  printed  copy  of  so  much 
of  the  abstract  of  record  as  may  be  necessary  to  a  fall  un- 
derstanding of  the  questions  presented  for  decision, 
which  abstract  shall  be  prepared  as  required  by  §§  67,  68 
and  69  of  these  rules.  The  appellant  shall  also,  fifteen 
days  before  the  first  day  of  the  term  for  which  the  cause 
is  to  be  docketed  for  trial,  file  with  the  clerk  twelve 
copies  of  said  abstract.  No  cause  shall  be  heard  until 
thirty  days  after  such  service  and  fifteen  days  after  such 
filing  with  the  clerk,  unless  advanced  by  order  of  the 
court.  In  case  of  cross-appeals,  the  party  first  giving 
notice  of  appeal  shall,  under  this  rule,  be  considered  the 
appellant.  [Old  Rules,  §  18.]16 

Sec.  21.  If  it  appear  from  an  inspection  of  the  ab- 
stract that  the  appellant  has  negligently  or  intentionally 
failed  to  comply  with  the  rule  requiring  only  so  much  of 
the  record  as  may  be  necessary  to  a  full  understanding 
of  the  question  presented  for  decision  to  be  included 
therein,  the  court  may,  in  its  discretion,  order  a  new  ab- 
stract prepared  in  conformity  with  such  rule  or  affirm 
the  judgment  of  the  lower  court  without  considering  the 
appeal.17 

Sec.  22.  The  abstract  so  filed  will  be  presumed  to 
contain  the  record  unless  denied  or  corrected  by  a  sub- 
sequent abstract.  Every  denial  shall  point  out  as  spe- 
cifically as  the  case  will  permit  the  defects  alleged  to 
exist  in  the  abstract.  A  denial  by  the  appellee  shall 
be  taken  as  true  unless  the  appellant  sustains  his  ab- 
stract by  a  certification  of  the  record.  Should  the  ap- 
pellee deem  the  appellant's  abstract  incorrect  or  unfair 
he  may  prepare  such  additional  abstract  as  he  shall 
deem  necessary  to  a  full  understanding  of  the  questions 
presented  to  the  court  for  decision.  A  denial  by  the  ap- 
pellant of  such  additional  abstract,  if  not  confessed,  will 
be  disregarded  unless  sustained  by  a  certification  of  the 
record.  The  appellee  shall  serve  one  printed  copy  of  his 

i«  Sec.  1333.  17  Sec.  1333. 


PKACTICE  IN  SUPREME  COURT.  631 

additional  abstract  or  denial  on  each  appellant  or  his 
attorney  and  deliver  twelve  printed  copies  thereof  to  the 
clerk  within  ten  days  after  receiving  the  appellant's  ab- 
stract, and  a  denial  by  the  appellant  shall  be  served  on 
the  appellee  and  twelve  printed  copies  thereof  delivered 
to  the  clerk  within  five  days  after  service  of  the  addi- 
tional abstract.  [Code,  §§  4118,  4120.]18 

Sec.  23.  No  certification  of  the  record  shall  be  re- 
quired unless  ordered  by  the  supreme  court,  or  a  judge 
thereof,  which  order  must  be  made  upon  an  application 
in  waiting  or  by  motion,  designating  the  matters  and 
things  of  record  desired  to  be  included  therein,  and  show- 
ing the  necessity  therefor.  The  order,  if  granted,  shall 
contain  similar  designations  and  show  the  parts  to  be 
given  by  an  abstract  of  the  original  record  and  the  por- 
tions to  be  by  transcript,  and  may  require  any  or  all  the 
matters  to  be  presented  by  an  amended  abstract.  The 
application  and  the  order  made  shall  be  filed  in  the 
office  of  the  clerk  of  the  supreme  court,  who  shall  trans- 
mit the  order  to  the  clerk  of  the  lower  court,  and  send  a 
notice  or  copy  thereof  to  the  appellant  or  his  attorney. 
The  order  shall  be  attached  to  and  returned  with  the 
record  certified,  and  be  submitted  with  the  papers  in 
the  case.  The  appellant,  upon  notice  or  copy  of  the  order 
being  received  by  him  or  his  attorney,  shall,  within  five 
days,  unless  otherwise  ordered,  pay  or  secure  to  the 
satisfaction  of  the  clerk  of  the  lower  court  his  fees  and 
expenses  for  preparing  and  forwarding  the  record  or- 
dered. [Code,  §  4122;  Old  Kules,  §  12.]19 

Sec.  24.  When  certification  of  the  record  is  required 
the  designated  papers,  notices,  depositions,  exhibits  iden- 
tified as  evidence,  notice  of  appeal  with  return  or  ac- 
ceptance of  service  thereon,  and  any  other  papers  filed 
in  the  case,  or  any  part  thereof,  may  be  transmitted  to 
the  supreme  court  in  the  original  form  or  by  a  transcript 
of  the  same,  excepting  that  the  shorthand  reporter's 
translation  of  his  report  shall  be  transmitted  in  its  or- 

«  Sees.  1333,  1336.  i»  Sees.  1327,  1333. 


632  PEACTICE  IN  SUPREME  COURT.          [§  1386. 

iginal  form,  but  all  entries  of  record  must  be  certified  by 
transcript.  The  clerk  of  the  trial  court  shall  verify  his 
return,  whether  it  be  of  the  record  or  transcription  there- 
of, by  his  certificate,  under  seal,  distinguishing  between 
originals  and  transcripts,  and  such  certification  so  made 
shall  constitute  a  part  of  the  record  in  the  supreme  court. 
[Code,  §  4123;  Old  Rules,  §  20.]20 

Sec.  25.  Where  a  view  of  an  original  paper  or  ex- 
hibit in  the  action  may  be  important  to  a  correct  de- 
cision of  the  appeal,  the  court  may  order  the  clerk  of  the 
court  below  to  transmit  the  same,  which  he  shall  do  in 
the  manner  provided  for  the  transmission  of  certificates 
of  the  record.  [Code,  §  4124.]21 

Sec.  26.  A  transcript  may  be  denied;  and  when 
such  denial  is  made  it  shall  be  as  specific  as  the  case  will 
permit  The  trial  court,  the  supreme  court,  or  a  judge 
of  either  court  may  make  any  orders  necessary  to  secure 
a  perfect  record  or  transcript  thereof,  upon  a  showing 
by  affidavit  or  otherwise,  and  upon  such  notice  as  the 
court  or  judge  may  prescribe.  [Code,  §  4120.]22 

Sec.  27.  The  transcript  of  any  paper  or  exhibit  re- 
quired for  use  in  the  supreme  court  may  be  transmitted 
thereto  by  the  clerk  of  the  trial  court,  by  express  or  other 
safe  and  speedy  method,  but  not  by  a  party  or  any  attor- 
ney of  a  party.  [Code,  §  4125.]23 

Sec.  28.  If  an  abstract  of  the  record  is  not  filed  by 
appellant  thirty  days  before  the  second  term  after  the 
appeal  was  taken,  unless  further  time  is  given  by  the 
court,  or  a  judge  thereof,  for  cause  shown,  the  appellee 
may  file  an  abstract  of  such  matters  of  record  as  are 
necessary,  or  may  file  a  copy  of  the  final  judgment  or 
order  appealed  from,  notice  of  appeal  and  return  of  ser- 
vice thereof,  certified  by  the  clerk  of  the  trial  court,  and 
cause  the  case  to  be  docketed,  and  the  appeal  upon  mo- 
tion shall  be  dismissed,  or  the  judgment  or  order  af- 
firmed. [Code,  §  4120;  Old  Rules,  §  21.]24 

20  Sees.  1327,  1333.  23  Sec.  1332. 

21  Sec.  1332.  24  sees.  1333,  1335. 

22  Sees.  1328,  1331,  1333. 


9  1386.]  PKACTICE   IN   SUPREME  COUET.  633 

Sec.  29.  If  the  appellant  fail  to  promptly  pay  or  se- 
cure to  the  satisfaction  of  the  clerk  of  the  trial  court, 
his  fees  and  expenses  for  preparing  and  forwarding  to 
the  clerk  of  the  supreme  court  any  record  ordered  to  be 
certified  by  the  supreme  court,  or  a  judge  thereof,  upon 
receiving  notice  thereof  or  copy  of  the  order  therefor, 
the  appeal,  upon  motion  supported  by  proof  of  the  facts, 
may  be  dismissed  or  the  judgment  affirmed  as  the  appel- 
lee "may  elect.  [Code,  §  4122.]25 

Sec.  30.  Where  appellant  has  no  right,  or  no  further 
right  to  prosecute  the  appeal,  the  appellee  may  move 
to  dismiss  it,  and  if  the  grounds  of  the  motion  do  not 
appear  in  the  record,  or  by  a  writing  purporting  to  have 
been  signed  by  the  appellant  and  filed,  they  must  be  veri- 
fied by  affidavit.  [Code,  §  4151.]26 

Sec.  31.  The  appellee  may,  by  answer  or  abstract 
filed  and  verified  by  himself,  agent  or  attorney,  plead 
any  facts  which  render  the  taking  of  the  appeal  im- 
proper or  destroy  the  appellant's  right  of  further  prose- 
cuting the  same,  to  which  the  appellant  may  file  a  reply 
or  abstract  likewise  verified  by  himself,  his  agent  or  at- 
torney, and  the  question  of  law  or  fact  therein  shall  be 
determined  by  the  court,  upon  evidence  in  the  form  of 
affidavits  unless  otherwise  ordered.  [Code,  §  4152;  Old 
Rules,  §  27.]"27 

It  will  be  observed  that  the  above  rules  make  new  pro- 
visions with  reference  to  obtaining  a  transcript  of  the 
record. 

Under  prior  rules  parties  were  free  to  procure  a  tran- 
script wherever  they  saw  fit.  Now  the  transcript  can 
only  be  had  upon  the  order  of  the  court  or  of  one  of  the 
judges  thereof  after  the  full  showing  required  by  the 
rules.  This  is  quite  a  radical  change  in  the  practice 
which  imposes  much  additional  labor  upon  counsel  and 
the  court  and  its  judges.  The  object  no  doubt  was  to 

«Sec.  1335.  27  Sec.  1347. 

26  Sec.  1347. 


PRACTICE  IN  SUPKEHE  COURT.          [§  1387. 

prevent  sending  up  transcripts  in  cases  where  they  were 
not  necessary. 

§  1387.  Of  supersedeas  bonds.— "Sec.  32.  No  pro- 
ceedings under  a  judgment  or  order,  nor  any  part 
thereof,  shall  be  stayed  by  an  appeal  unless  the  appel- 
lant executes  a  bond  with  one  or  more  sureties  to  be  filed 
with  and  approved  by  the  clerk  of  the  court  in  which  the 
judgment  or  order  was  rendered  or  made,  to  the  effect 
that  he  will  pay  to  the  appellee  all  costs  and  damages  that 
shall  be  adjudged  against  him  on  the  appeal,  and  will 
satisfy  and  perform  the  judgment  or  order  appealed 
from,  in  case  it  shall  be  affirmed,  and  any  judgment  or 
order  which  the  supreme  court  may  render  or  order  to  be 
rendered  by  the  inferior  court,  not  exceeding  in  amount 
or  value  the  original  judgment  or  order,  and  all  rents  of 
or  damages  to  property  during  the  pendency  of  the  ap- 
peal out  of  the  possession  of  which  the  appellee  is  kept 
by  reason  of  the  appeal.  If  the  bond  is  intended  to  stay 
proceedings  on  only  a  part  of  the  judgment  or  order,  it 
shall  be  varied,  so  as  to  secure  the  part  stayed  alone. 
When  thus  filed  and  approved,  the  clerk  shall  issue  a 
written  order  renuiring  the  appellee  and  all  others  to 
stay  all  proceedings  under  such  judgment  or  order,  or 
so  much  thereof  as  is  superseded  thereby,  but  no  appeal 
or  stay  shall  vacate  or  affect  such  judgment  or  order. 
[Code,  §  4128.]28 

Sec.  33.  If  a  party  has  perfected  his  appeal  and  the 
clerk  of  the  lower  court  refuses  for  any  reason  to  ap- 
prove the  bond  or  requires  an  excessive  penalty  or  un- 
just or  improper  conditions,  he  may  apply  to  the  dis- 
trict court  or  judge  thereof,  who  shall  fix  the  amount 
and  conditions  of  the  bond  and  approve  the  same.  Pend- 
ing the  application,  the  judge  may,  by  a  written  order, 
recall  and  stay  all  proceedings  under  the  order  or  judg- 
ment appealed  from,  until  the  decision  of  the  applica- 
tion. The  bond  thus  approved 'shall  be  filed  with  the 

zs  Sees.  1324,  1325. 


§  1388.}  PRACTICE   IN   SUPREME  COURT.  635 

clerk,  who  shall  issue  a  written  order  to  stay  proceed- 
ings. [Code,  §  4132.]29 

Sec.  34.  The  appellee  may  move  the  court  rendering 
the  judgment  or  making  the  order  appealed  from,  or  the 
supreme  court,  or  a  judge  of  either  court,  if  in  vacation, 
upon  ten  days'  notice  in  writing  to  appellant,  to  dis- 
charge the  bond  on  account  of  defect  in  substance  or  in- 
sufficiency in  security,  which  motion,  if  well  taken,  shall 
be  sustained,  unless  appellant  shall,  within  a  day  to  be 
fixed  in  the  order  made  and  filed  therein,  give  a  new  and 
sufficient  bond  as  required  by  said  order.  If  the  new 
bond  is  not  given,  proceedings  shall  be  had  in  the  lower 
court  as  though  no  bond  had  been  given,  but  a  new  and 
sufficient  bond  may  be  given  at  any  time  with  like  effect 
and  results  as  though  given  in  the  first  instance.  [Code, 
§  4133.]30 

Sec.  35.  If  the  judgment  or  order  is  for  the  payment 
of  money,  the  penalty  shall  be  in  at  least  twice  the 
amount  of  the-  judgment  and  costs.  If  not  for  the  pay- 
ment of  money,  the  condition  shall  be  to  save  the  appel- 
lee harmless  from  the  consequences  of  taking  the  appeal, 
but  in  no  case  shall  the  penalty  be  less  than  one  hundred 
dollars.  [Code,  §  4134.]"31 

§  1388.  Of  the  trial,  decision  and  execution.— 
"Sec.  36.  Except  in  actions  triable  de  novo  no  question 
shall  be  considered  by  the  supreme  court  unless  pointed 
out  by  an  assignment  of  error,  which  need  follow  no 
stated  form,  but  must  clearly  and  specifically  indicate 
the  very  error  complained  of,  and  among  several  points 
made  in  demurrer,  motion,  instructions  or  rulings,  the 
one,  or  those  relied  upon,  must  be  separately  stated.  The 
court  need  consider  only  such  errors  as  are  thus  assigned 
but  must  decide  upon  each  one  that  is.  [Code,  §  4136.]32 

Sec.  37.  If  errors  are  not  assigned  and  filed,  and  a 
copy  thereof  served  on  the  appellee  or  his  attorney  ten 
days  before  the  first  day  of  the  trial  term,  unless  good 

29  Sec.  1324.  81  Sec.  1324. 

so  Sec.  1325.  82  Sec.  1341. 


636  PRACTICE  IN  SUPREME  COURT.          [§  1389. 

cause  for  the  failure  be  shown,  the  appellee  may  have 
the  appeal  dismissed  or  the  judgment  or  order  affirmed. 
[Code,  §  4137.]"  33 

§  1389.  Of  motions.— "Sec.  38.  (1.)  All  motions 
must  be  in  writing,  filed  with  the  clerk  and  entered  upon 
the  motion  book.  No  motion  shall  be  submitted  with- 
out being  publicly  called  by  the  court,  unless  the  parties 
otherwise  agree. 

(2.)  All  motions  must  be  served  by  copy  of  the  same 
and  of  all  affidavits  or  documents  upon  which  they  are 
based,  upon  the  opposite  party  or  attorney,  ten  days  be- 
fore the  morning  on  which  the  causes  for  the  district  are 
set  for  hearing.  Such  opposite  party  shall  then  have  five 
days  to  file  papers  in  resistance  to  the  same,  copies  of 
which  must  be  served  upon  the  other  party  or  attorney, 
and  no  papers  will  be  regarded  which  do  not  appear 
to  have  been  so  served.  This  rule  shall  not  apply  to  mo- 
tions the  causes  whereof  arise  after  the  filing  of  the  ab- 
stract, but  in  such  cases  timely  notice  of  such  motions 
shall  be  given  to  the  opposite  attorneys.  Nor  shall  this 
rule  apply,  as  to  time  of  service,  to  motions  for  continu- 
ance. 

(3.)  Motions  made  in  a  cause  after  judgment  rendered 
by  the  supreme  court,  or  after  the  time  assigned  for  the 
hearing  of  causes  from  the  district  from  which  it  was  ap- 
pealed, will  be  heard  only  upon  proof  of  service  of  rea- 
sonable notice  of  such  motion  upon  the  adverse  party  or 
attorney. 

(4.)  Arguments  in  support  of  motions,  if  any,  must  be 
in  writing  or  print,  and  shall  be  filed  before  the  morning 
of  the  day  set  for  the  hearing  of  the  cause,  and  served 
by  copy  upon  the  opposite  party  or  attorney  when  the  mo- 
tion is  served;  and  arguments  in  resistance,  if  any,  must 
be  in  writing  or  print  and  filed  before  the  morning  of  the 
day  set  for  the  hearing  of  the  cause,  and  served  by  copy 
on  the  opposite  party  or  attorney  when  the  papers  in 
resistance  are  served.  [Code,  §  4138;  Old  Kules,  §  52.]"  3* 

ss  Sees.  1335,  1341.  34  Sec.  1347. 


§  1390.]         PRACTICE  IX  SUPREME  COURT.  G37 

Counsel  are  not  always  careful  to  see  that  notice  of  mo- 
tions are  served,  or  if  served  it  is  often  the  case  that  no 
return  of  service  has  been  made  when  the  time  arrives  for 
deciding  upon  the  motion.  Cases  are  often  continued 
for  service  of  the  notice,  or  of  the  showing  in  support  of 
the  motion,  or  of  the  resistance. 

§  1390,  Of  briefs  and  arguments.— "Sec.  39.  When 
the  appeal  presents  to  the  court  only  questions  of  law 
upon  rulings  of  the  court  below,  the  appellant  shall  open 
and  close  the  argument,  and  must,  at  least  thirty  days 
before  the  day  assigned  for  the  hearing  of  the  case,  serve 
upon  an  attorney  for  each  appellee  copies  of  his  brief  of 
points  and  authorities  or  argument.  If  appellee  desires 
to  be  heard,  he  shall,  at  least  ten  days  prior  to  the  hear- 
ing, serve  upon  an  attorney  for  each  appellant  copies 
of  his  brief  or  argument;  and  the  reply,  if  in  print,  shall 
be  served  at  least  three  days  before  the  case  is  to  be  final- 
ly submitted.  If  the  trial  in  the  supreme  court  is  de 
novo,  and  the  appellant  has  the  burden,  he  shall  observe 
the  foregoing  rules.  But  if  appellee  has  the  burden,  lie 
may  waive  his  right  to  open  the  argument  by  serving 
notice  in  writing  of  his  intention  to  do  so  upon  appellant 
or  his  attorney  at  least  thirty  days  before  the  day  as- 
signed for  the  hearing  of  the  cause.  Appellant  will  then 
be  entitled  to  open  the  argument,  and  must  serve  copies 
of  his  argument  upon  an  attorney  for  each  appellee  ten 
days  before  the  hearing.  Appellee  may  then,  and  at  least 
three  days  before  the  submission,  serve  upon  an  attorney 
for  each  appellant  copies  of  his  argument,  which  must 
be  strictly  confined  to  matters  in  reply  to  appellant's 
argument.  A  failure  to  comply  with  the  above  require- 
ments will  entitle  the  party  not  in  default,  unless  the 
court  shall,  for  sufficient  cause,  otherwise  order,  to  a  con- 
tinuance or  to  have  the  case  submitted  at  his  option  upon 
the  brief  and  arguments  on  file  when  the  default  oc- 
curred. [Code,  §  4139;  Old  Kules,  §§  53,  57.]33 

Sec.  40.     All  printed  briefs  and  arguments  shall  be 

35  Sec.  1345. 


638  PRACTICE  IX  SUPREME  COURT.          [§  1390. 

prepared  as  required  by  §  66  hereof,  and  each  party  shall 
file  with  the  clerk  twelve  printed  copies  of  each  brief  or 
argument,  together  with  proper  evidence  of  service  of 
the  same  upon  opposing  attorneys.  The  clerk  shall  note 
upon  his  docket  the  date  of  the  service  and  filing  of  all 
manuscripts  and  arguments,  and  no  brief  or  argument 
not  served  or  filed  within  the  time  prescribed  by  these 
rules  will  be  transmitted  to  the  judges  or  considered  by 
them  in  disposing  of  the  case.  No  cause  will  be  entered 
as  submitted  until  the  arguments  are  finally  and  actually 
concluded.  [Old  Rules,  §§  53,  54.]36 

Sec.  41.  Notice  in  writing  or  in  print  of  intention  to 
argue  a  case  orally,  shall  be  served  upoji  an  attorney  for 
the  adverse  party  and  filed  with  the  clerk  fifteen  days  be- 
fore the  first  day  of  the  term,  and  the  party  who  fails 
to  so  serve  and  file  such  notice  shall  not  be  entitled  to 
argue  orally,  except  in  reply  to  an  oral  argument  for 
the  adverse  party.  [Old  Rules,  §  55.]37 

Sec.  42.  If  appellant  has  given  the  notice,  he  is  en- 
titled to  open  and  close  the  argument,  unless  the  cause 
is  triable  de  novo  and  the  appellee  has  the  burden.  If 
the  notice  was  given  by  appellee  only,  he  is  entitled  to 
the  opening,  and  the  appellant  must  confine  his  remarks 
to  a  reply,  unless  the  cause  is  triable  de  novo.  If  the 
cause  is  triable  de  novo  and  appellee  has  the  burden,  he 
may,  if  he  has  given  the  requisite  notice,  open  and  close 
the  argument.  [Old  Rules,  §  5T.]38 

Sec.  43.  No  oral  argument  shall  exceed  one  hour  in 
length  unless  an  extension  of  time  be  granted  before  the 
argument  of  "the  case  is  commenced.  Only  two  attor- 
neys will  be  heard  on  each  side,  but  in  case  no  oral  argu- 
ment is  made  on  one  side,  only  one  attorney  shall  be 
heard  for  the  other.  [Old  Rules,  §  56.]39 

Sec.  44.  At  the  commencement  of  each  assignment 
for  the  term  all  causes  included  in  the  assignment  will  be 
called,  but  the  submission  of  a  cause  will  not  be  taken 

8«  Sec.  1345.  ss  Sec.  1345. 

87  Sec.  1345.  39  Sec.  1345. 


§  1391.]         PRACTICE  IN  SUPREME  COURT.  639 

on  the  first  call  if  any  party  thereto  object.  The  court 
will  hear  all  causes  included  in  the  assignment  and  take 
the  submissions  thereof  in  the  order  in  which  they  are 
assigned,  excepting  those  which  have  been  continued 
or  otherwise  disposed  of  by  direction  of  court.  [Code, 
§  4139;  Old  Rules,  §§  58,  68.]"40 

A  careful  study  of  the  above  rules  will  avoid  much 
trouble,  which  has  heretofore  arisen,  as  to  when  counsel 
were  entitled  to  be  heard  orally,  and  who  should  open 
and  close  the  argument.  Counsel  sometimes  seem  to 
forget  that  with  the  vast  amount  of  business  before  the 
court  it  is  impossible  to  frequently  extend  the  time  for 
oral  argument.  A  good  oral  argument,  that  is  one  direct- 
ed to  the  real  points  of  contention,  upon  the  law  of  the 
case,  is  always  appreciated  by  the  judges,  and  is  very 
helpful,  but  an  oral  argument  on  fact  questions  can  not, 
as  a  rule,  be  regarded  as  aiding  the  court,  as  in  any  event 
resort  must  be  had  to  the  record  to  settle  disputed  ques- 
tions of  fact. 

Taking  the  submission  of  over  five  hundred  cases  a  year 
and  deciding  them,  it  will  be  seen  that  it  wrould  be  about 
impossible  for  the  judges  to  retain  the  points  of  an  argu- 
ment on  the  facts  and  have  them  in  mind  when  the  case 
is  considered  and  decided. 

It  is  not  often  that  the  time  allowed  for  oral  argument 
is  extended.  In  nearly  all  cases  which  are  argued  orally 
it  is  found  that  the  time  allowed  by  the  rules  insures  a 
better  presentation  of  the  case  than  is  usual  when  the 
time  is  extended. 

§  1391.  Of  decisions  and  opinions. — "Sec.  45.  The 
court  may  reverse,  modify  or  affirm  the  judgment,  decree 
or  order  appealed  from,  or  render  such  as  the  inferior 
court  should  have  done.  [Code,  §  4139.] 

Sec.  46.  No  cause  will  be  considered  as  decided  until 
a  written  decision  is  filed  with  the  clerk.  The  decisions 
of  the  court  on  all  questions  passed  upon  by  it,  including 
motions  and  points  of  practice,  shall  be  specifically 

40  Sees.  1348,  1354. 


640  PKACTICE  IX  SUPREME  COURT.          [§  1392. 

stated,  and  shall  be  accompanied  by  an  opinion  upon  all 
such  matters  as  are  deemed  of  sufficient  importance,  to- 
gether with  any  dissent  therefrom,  which  dissent  may  be 
stated  with  or  without  an  opinion;  and  all  decisions 
and  opinions,  including  dissents,  shall  be  in  writing  and 
be  filed  with  the  clerk  except  rulings  on  motions  which 
may  be  entered  upon  the  announcement  book.  If  the  de- 
cision is  not  accompanied  with  an  opinion,  it  shall  briefly 
state  the  title  of  the  case,  the  county  from  which  the  case 
was  appealed,  the  n#me  of  the  presiding  judge,  the  nature 
of  the  action,  the  names  of  counsel  appearing  on  either 
side,  and  the  conclusions  reached.  [Code,  §§  198,  4139.]41 

Sec.  47.  When  the  court  is  equalh7  divided  in  opinion 
the  judgment  of  the  court  below  shall  stand  affirmed, 
but  the  decision  is  of  no  further  force  or  authority.  In 
case  of  such  division,  opinions  may  be  filed  at  the  option 
of  the  court.  If  no  opinion  is  filed  a  written  announce- 
ment shall  be  made  of  the  division  of  the  court  upon  the 
questions  presented,  and  that  the  judgment  is  affirmed 
by  operation  of  law.  [Code,  §§  195,  198.]"42 

The  change  in  the  statute  and  in  the  rules  contem- 
plates that  cases  may  be  decided  without  writing  out  an 
opinion.  Heretofore  a  written  opinion  had  to  be  filed  in 
every  case.  Under  the  above  provisions  it  is  likely 
that  no  opinion  will  be  written  in  at  least  one-third  of  the 
cases  submitted.  In  all  cases  of  affirmance,  which  in- 
volve no  new  question,  they  can,  and  no  doubt  will  be  dis- 
posed of  under  the  provisions  of  the  last  clause  of  rule 
46  above. 

This  will  greatly  facilitate  the  business  of  the  court, 
while  working  no  injustice  to  litigants  or  their  counsel. 

§  1392.  Of  records  and  reports.  — "Sec.  48.  The 
records  and  reports  must  in  all  cases  sho.w  whether  a  de- 
cision was  made  by  a  full  bench,  and  whether  either,  and 
if  so,  which  of  the  judges  dissented  from  the  decision. 
[Code,  §  199.] 

41  Sec.  1354.  «  Sec.  1354. 


§  1393.]  PEACTICE   IX   SUPREME  COURT.  641 

Sec.  49.  All  decisions  and  opinions  of  the  court  shall 
be  published  in  the  official  reports,  except  such  as  the 
court  may  think  unimportant.  Decisions  and  opinions 
which  are  not  to  be  included  will  be  marked,  'Not  to  be 
officially  reported,'  and  when  so  marked  they  shall  not 
be  included  in  the  reports.  [Code,  §  200;  Old  Rules, 
§  60.]" 

§  1393.  Of  judgments  and  decrees. — "Sec.  50.  The 
supreme  court,  if  it  affirms  the  judgment,  shall  also,  if 
the  appellee  asks  or  moves  therefor,  render  judgment 
against  the  appellant  and  his  sureties  on  the  appeal  bond 
for  the  amount  of  the  judgment,  damages  and  costs  re- 
ferred to  therein,  in  case  such  damages  can  be  accurately 
known  to  the  court  without  an  issue  and  trial.  [Code, 
§  4140.]43 

Sec.  51.  Upon  the  affirmance  of  any  judgment  or  or- 
der for  the  payment  of  money,  the  collection  of  which  in 
whole  or  part  has  been  stayed  by  an  appeal  bond,  the 
court  may  award  to  the  appellee  damages  upon  the 
amount  so  stayed;  and,  if  satisfied  by  the  record  that 
the  appeal  was  taken  for  delay  only,  may  award  as  dam- 
ages a  sum  not  exceeding  fifteen  per  cent,  thereon. 
[Code,  §  4141.]14 

Sec.  52.  Decrees  to  be  entered  in  this  court  shall  be 
prepared  by  the  attorney  of  the  parties  in  whose  favor 
they  are  rendered.  Copies  shall  be  served  on  the  oppo- 
site attorney  and  filed  in  the  court  within  twenty  days 
after  the  attorney  preparing  them  shall  have  received 
notice  of  the  decision  in  the  cause  in  which  they  are  en- 
tered. [Old  Eules,  §  71.]45 

Sec.  53.  When,  by  the  decision,  a  decree  is  to  be  en- 
tered in  this  court  at  the  option  of  either  party,  such  op- 
tion shall  be  declared  and  a  decree  furnished  under  the 
above  rule  within  twenty  days  from  the  date  at  which 
the  attorney  required  to  prepare  the  decree  received 
notice  of  the  decision.  [Old  Eules,  §  72.]46 

43  Sec.  1348.  45  Sec.  1357. 

«  Sec.  1348.  46  Sec.  1357. 

Vol.  11—11 


642  PRACTICE  IX  SUPREME  COURT.          [§  1394 

Sec.  54.  No  procedendo,  except  in  criminal  cases  and 
in  cases  where  petitions  for  rehearing  have  been  over- 
ruled, shall  issue  in  an}-  case  until  the  expiration  of  thirty 
days  from  the  filing  of  the  opinion  in  the  case,  except 
upon  an  order  of  one  of  the  judges  of  the  court,  upon 
cause  shown.  [Old  Kules,  §  TO.]"47 

§  1394.  Of  executions. — "Sec.  55.  If  the  supreme 
court  affirms  the  judgment  or  order  it  may  send  the  cause 
to  the  court  below  to  have  the  same  carried  into  effect, 
or  may  issue  the  necessary  process  for  this  purpose,  di- 
rected to  the  sheriff  of  the  proper  county,  as  the  party 
may  require.  [Code,  §  4143.]48 

Sec.  56.  If  remanded  to  the  inferior  court  to  be  car- 
ried into  effect,  such  decision  and  the  order  of  the  court 
thereon,  being  certified  thereto  and  entered  on  the  rec- 
ords thereof,  shall  have  the  same  force  and  effect  as  if 
made  and  entered  during  the  session  of  that  court. 
[Code,  §  4144.]49 

Sec.  57.  If  by  the  decision  of  the  supreme  court,  the 
appellant  becomes  entitled  to  a  restoration  of  any  part  of 
the  money  or  property  that  was  taken  from  him  b}'  means 
of  such  judgment  or  order,  either  the  supreme  court  or  the 
court  below  may  direct  execution  or  writ  of  restitution 
to  issue  for  the  purpose  of  restoring  to  him  such  property 
or  its  value.  [Code,  §  4145.]50 

Sec.  58.  Executions  issued  from  the  supreme  court 
shall  be  like  those  from  the  district  court,  attended  with 
the  same  consequences,  and  returnable  in  the  same  time. 
[Code,  §  4153.]51 

Sec.  59.  In  cases  in  which  the  judgment  below  is  af- 
firmed in  this  court,  the  parties  in  whose  favor  the  judg- 
ment is  affirmed  may  have  execution  either  from  this 
court  or  the  court  below.  In  case  of  an  execution  from 
this  court,  if  a  process  of  garnishment  is  served  upon  the. 
execution  defendant,  either  principal  or  surety,  the  sher- 

47  Sec.  1357.  so  Sees.  1348,  1353. 

*8  Sec.  1348.  6i  Sec.  1353. 

49  Sec.  1352. 


§  1395.]          PRACTICE  IN  SUPREME  COURT.  643 

iff,  in  addition  to  his  return,  shall  return  a  copy  of  the 
execution  and  his  returns  to  the  district  or  superior 
court  from  which  the  cause  was  appealed,  and  all  issues 
of  fact  which  may  arise  in  said  garnishment  process  shall 
be  tried  by  that  court.  [Old  Rules,  §  67.]"52 

§  1395.  Of  rehearings.— "Sec.  60.  No  petition  for 
rehearing  shall  be  filed  after  sixty  days  from  the  filing  of 
the  opinion  or  decision  of  the  supreme  court.  [Code, 
§  4149;  Old  Rules,  §  88.]53 

Sec.  61.  Written  notice  of  intention  to  petition  for  a 
rehearing  shall  be  served  on  the  opposite  party  or  his 
attorney,  and  the  clerk  of  the  court,  within  thirty  days 
after  the  filing  of  the  opinion  or  decision,  and  if  no  such 
notice  is  served,  the  petition  for  rehearing  shall  not  be 
filed  after  the  expiration  of  such  thirty  days.  [Code, 
§  4149;  Old  Rules,  §  89.]54 

Sec.  62.  The  petition  for  rehearing  shall  be  printed 
and,  with  proof  of  service  thereof  on  the  opposite  party, 
or  his  attorney,  shall  be  filed  with  the  clerk  of  the  court 
within  sixty  days  after  the  opinion  is  filed,  and  may  be 
made  the  argument  or  brief  of  authorities  relied  upon 
for  a  rehearing.  It  shall  include  a  copy  of  the  opinion  or 
decision  of  the  court  to  which  objection  is  made,  or  a  ref- 
erence to  the  volume  and  page  of  the  Northwestern  Re- 
porter in  which  it  has  been  printed.  The  adverse  party 
may  file  an  argument  in  response.  [Code,  §  4149;  Old 
Rules,  §§  90,  92.]55 

Sec.  63.  A  copy  of  the  petition  shall  be  served  upon 
the  attorney  of  the  adverse  party,  and  if  there  be  more 
than  one,  upon  the  attorney  of  each  of  them,  within  sixty 
days  after  the  opinion  or  decision  is  filed;  and  twelve 
copies  shall  be  delivered  to  the  clerk  of  the  court.  If 
there  be  a  printed  argument  in  resistance  of  the  petition, 
a  copy  thereof  shall  be  served  upon  the  attorney  for  the 
petitioner  ten  days  before  the  day  fixed  for  the  hearing  of 

62  Sec.  1353.  54  Sec.  1376. 

es  Sec.  1376.  °5  Sec.  1376. 


644  PRACTICE  IX  SUPEEME  COURT.          [§  1396. 

the  cause,  and  twelve  copies  shall  be  delivered  to  the 
clerk  of  the  court.  [Code,  §  4149;  Old  Rules,  §§  90,  91.]56 

Sec.  64.  The  cause  shall  be  placed  on  the  docket  and 
assigned  for  hearing  at  the  next  term,  the  first  day  of 
which  shall  not  be  less  than  twenty  days  after  the  filing 
of  the  petition.  If  the  party  applying  for  a  rehearing 
shall  give  notice  of  oral  argument  in  his  petition,  both 
parties  shall  be  entitled  to  be  heard  orally,  unless  the 
party  giving  notice  waive  oral  argument.  [Code,  §  4149 ; 
Old  Rules,  §  90.]57 

Sec.  65.  If  a  petition  for  rehearing  is  filed,  it  shall 
suspend  the  decision,  if  the  court  or  one  of  the  judges 
upon  its  presentation  so  order,  until  after  the  final  de- 
cision on  the  rehearing.  [Code,  §  4148.]"  5S 

§  1396.  Of  preparing  and  printing  abstracts, 
transcripts,  briefs,  arguments  and  petitions  for  re- 
hearing.— "Sec.  66.  All  abstracts,  denials  of  abstracts, 
briefs,  arguments  and  petitions  for  rehearing  shall  be 
printed  upon  unruled  writing  paper,  with  type  common- 
ly known  as  small  pica,  leaded  lines,  the  printed  page  to 
be  four  inches  wide  by  seven  inches  long,  with  a  margin 
of  two  inches;  but  the  type  in  which  extracts  are  printed 
may  be  small  pica  solid,  or  brevier  with  leaded  lines. 
The  first  page  of  the  abstract,  denial,  brief  or  argument, 
shall  show  the  title  of  the  cause,  designating  the  appel- 
lant and  the  appellee,  the  term  of  the  supreme  court  to 
which  the  appeal  is  brought,  the  court  from  which  the 
appeal  is  taken,  the  name  of  the  judge  who  presided  at 
the  trial,  and  the  names  of  the  attorneys  for  both  the 
appellant  and  appellee.  [Old  Rules,  §  96.]59 

Sec.  67.  The  abstract  must  be  accompanied  by  a  com- 
plete index  of  its  contents.  [Old  Rules,  §  9T.]60 

Sec.  68.  Abstracts  of  record  shall  be  made  substan- 
tially in  the  following  form: 

68  Sec.  1377.  69  Sec.  1333. 

BTSecs.  1333,  1377.  eo  Sec.,  1333. 

cs  Sees.  1333,  1376. 


§  1396.]  PEACTICE  IN   SUPEEME  COUKT.  645 

IN  THE  SUPREME  COURT  OP  IOWA. 

January  Term,    1§ . 

JOHN  DOE,  Appellant,     |  Appellant>s  Abstract  of  Record. 
RICHARD  ROE,  Appellee,  f   ("In  E1uity"  or  "At  ***"> 

Appeal  from  Van  Buren  District  Court. 
JOHN   SMITH,  Judge. 

J.  C.  K.,  for  the  Appellant. 
H.  H.  S.,  for  the  Appellee. 

On  the  —    —  day  of ,  18—,  the  plaintiff  filed  in  the  Van  Buren 

district  court  a 

PETITION 

stating  his  cause  of  action  as  follows: 

[Set  out  all  of  petition  necessary  to  an  understanding  of  the  ques- 
tions to  be  presented  to  this  court,  and  no  more.  In  setting  out  exhibits, 
omit  all  merely  formal  irrelevant  parts,  as,  for  example,  if  the  exhibit 
be  a  deed  or  mortgage  and  no  question  is  raised  as  to  the  acknowledg- 
ment, omit  the  acknowledgment. 

When  the  defendant  has  appeared  it  is  useless  to  encumber  the 
record  with  the  original  notice,  or  the  return  of  the  officer.] 

pn  the day  of ,  18—,  the  defendant  filed  a 

DEMURRER 

to  said  petition  setting  up  the  following  grounds: 

[State  only  the  grounds  of  demurrer,  omitting  the  formal  parts.  If 
the  pleading  was  a  motion,  and  the  ruling  thereon  is  one  of  the  ques- 
tions to  be  considered,  set  it  out  in  the  same  way,  and  continue.] 

And  on  the  day  of ,  18 — ,  the  same  was  submitted  to 

the  court,  and  the  court  made  the  following  rulings  thereon:  [Here  set 
out  the  ruling.  In  every  instance  let  the  abstract  be  made  in  the 
chronological  order  of  the  events  in  the  case — let  each  ruling  appear  in 
the  proper  connection.  If  the  defendant  pleaded  over,  and  thereby 
waived  his  right  to  appeal  from  these  rulings,  no  mention  of  them 
should  be  made  in  the  abstract,  but  it  should  continue.] 

And  on  the  day  of ,  18 — ,  the  defendant  filed  his 

ANSWER 

to  the  petition,  setting  up  the  following  defenses: 

[Here  set  out  the  defenses,  omitting  all  formal  parts.  If  motions 
or  demurrers  were  interposed  to  this  pleading,  proceed  as  directed  with 
reference  to  the  petition 

Frame  the  record  so  that  it  will  properly  present  all  questions  to 
be  reviewed  and  raised  before  issue  is  joined.  When  the  abstract  shows 
issue  joined,  proceed.] 


646  PEACTICE   IN    SUPREME   COURT.  [§  1396. 

BILL  OF  EXCEPTIONS. 

On  the day  of ,  18 — ,  said  cause  was  tried  to  a  jury  (or 

the  court,  as  the  case  may  be)  and  on  the  trial  the  following  proceed- 
ings were  had: 

[Here  set  out  so  much  of  the  evidence  and  proceedings  as  is  neces- 
sary to  show  the  rulings  of  the  court  to  which  exceptions  were  taken 
during  the  progress  of  the  trial.] 

INSTRUCTIONS. 

After  the  evidence  and  the  arguments  of  counsel  were  concluded, 
the  plaintiff  (or  defendant,  as  the  case  may  be)  asked  the  court  to  give 
each  of  the  following  instructions  to  the  jury: 

[Set  out  the  instructions  referred  to,  and  continue.] 

Which  the  court  refused  as  to  each  instruction,  to  which  several 
rulings  the  plaintiff  (or  defendant)  excepted  at  the  time,  and  thereupon 
the  court  gave  the  following  instructions  to  the  jury: 

[Set  out  the  instructions.] 

To  the  giving  of  those  numbered  (give  the  number)  and  to  the 
giving  of  each  thereof  the  plaintiff  (or  defendant)  at  the  time  excepted. 

VERDICT. 

On  the day  of ,  18 — ,  the  jury  returned  into  court  with 

the  following  verdict: 

[Set  out  the  verdict.] 

MOTION  FOR  NEW  TRIAL. 

On  the  day  of ,  18 — ,  the  plaintiff  (or  defendant)  filed 

a  motion  praying  the  court  to  set  aside  the  verdict  and  grant  a  new 
trial  upon  the  following  grounds: 

[Set  out  the  grounds  aforesaid  for  the  new  trial.] 

On  the day  of ,  18 — ,  the  court  made  the  following  rul- 
ing upon  said  motion: 

[Set  out  the  record  of  the  ruling.] 

To  which  the  plaintiff  (or  defendant)  at  the  time  excepted. 
JUDGMENT. 

On  the  day  of  ,  18 — ,   the   following  judgment  was 

entered: 

[Set  out  the  judgment  entry  appealed  from.] 

On  the day  of ,  18 — ,  the  plaintiff  perfected  an  appeal 

to  the  supreme  court  of  the  State  of  Iowa,  by  serving  upon  the  defend- 
ant and  the  clerk  of  the  district  court  of  Van  Buren  county  a  notice  of 

appeal. 

[If  supersedeas  bond  was  filed,  state  the  fact.] 


£  Iu96.]  PEACTICE   IN   SUPEEME  COURT.  617 

ASSIGNMENT  OF  ERRORS. 

And  the  appellant  herein  says  there  is  manifest  error  on  the  face 
of  the  record  in  this: 

[Set  out  the  errors  assigned.] 

This  outline  is  presented  for  the  purpose  of  indicating 
the  character  of  the  abstract  contemplated  by  the  rule, 
which,  like  all  the  rules,  is  to  be  substantially  complied 
with.  Of  course,  no  formula  can  be  laid  down  applicable 
to  all  cases.  The  rule  to  be  observed  in  abstracting  a 
case  is:  Preserve  everything  material  to  the  questions 
to  be  decided,  and  omit  everything  else.  [Code,  §§  3675, 
3749;  Old  Rules,  §  98.]61 

Sec.  69.  The  printed  brief  and  argument  shall  state 
in  divisions  thereof,  properly  numbered,  the  several  prop- 
ositions of  law  claimed  by  the  party  making  such 
brief  or  argument  to  be  involved  in  the  case  before  the  su- 
preme court,  and  authorities  relied  upon  in  support  of 
the  same.  When  an  authority  cited  is  an  adjudicated 
case,  the  brief  or  argument  must  show  the  names  of  the 
parties,  the  volume  in  which  it  is  reported,  and  the  page 
or  pages  containing  the  matter  to  which  the  attorney  de- 
sires to  call  the  attention  of  the  court.  When  the  refer- 
ence is  a  text-book,  the  number  or  date  of  the  edition 
must  be  stated,  with  the  number  of  the  volume  and  page. 
[Old  Rules,  §  99.]62 

Sec.  70.  Transcripts  of  the  record,  when  required  by 
the  supreme  court,  or  a  judge  thereof,  may  be  made  sub- 
stantially in  the  manner  following,  viz. : 

State  of  Iowa,       [ 
County  of 


In  the  district  (or  superior)  court  of  Iowa,  at  a  term  begun  and 

holden  in  the  county  of ,  on  the  —    -  day  of  -     — ,  A.  D.  18—, 

before  J.  H.  G.,  judge  of  the judicial  district  (or  judge  of  the 

superior  court)  of  the  State  of  Iowa. 


N.  P. 

v. 
C.  D. 


Be  it  remembered  that  heretofore,  to  wit,  on  the  day  of 

ei  Sec.  1333.  62  Sec.  1345. 


G48  PRACTICE   IX   SU1;REME   COURT.  [§  1396. 

— ,  A.  D.  18 — ,  a  petition  was  filed  in  the  office  of  the  clerk  of  the 

district  (or  superior)  court,  in  and  for  the  county  of in  words  and 

figures  following,  to-wit: 

[Here  insert  the  petition  in  full.] 

[Proceed  in  the  same  manner  in  relation  to  whatever  paper  is  filed, 
such  as  the  original  notice,  or  a  petition  for  attachment,  etc. 

If  the  cause  has  come  from  another  county  by  a  change  of  venue, 
begin  as  above.  "Be  .it  remembered,"  and  state  in  like  manner  all  that 
was  done  in  the  county  from  which  the  venue  was  changed.] 

And  afterward  there  was  filed  in  the  office  of  the  said  clerk  a  notice, 
in  the  words  and  figures  following,  to-wit: 

[Here  insert  the  notice  in  full.] 

[Copy  all  indorsements  on  the  face  of  the  transcripts,  or  copy  of 
record,  and  not  upon  the  back  of  the  leaf.] 

Upon  which  (or  attached  to  which)  was  a  return  as  follows:  (Copy 
the  officer's  return,  with  all  indorsements  in  full;  if  the  suit  be  by  at- 
tachment, copy  the  petition  or  affidavit,  writ  or  attachment,  bond,  no- 
tice, return,  etc.] 

And  afterward,  to-wit:   on  the day  of ,  A.  D.  18 — ,  there 

was  filed  in  the  office  of  the  said  clerk,  an  answer  in  words  and  figures 
following,  to-wit: 

[Here  insert  answer  in  full.] 

[Should  the  clerk  doubt  what  the  paper  is,  let  him  call  it  a  "paper 
in  the  words  and  figures  following,"  etc.] 

Where  a  paper  is  filled  in  term  time,  add  the  day  of  the  term  to  the 
day  of  the  month,  as  in  the  next  form. 

A.  B. 


^.  v.    , 

v-     r 
:.  D. 


c. 

And  afterward,  to-wit:    on  the day  of ,  A.  D.  18 — ,  it 

being  the  day  of  the  term  of  said  court,  the  said  A.  B. 

(or  plaintiff)   filed  the  following  demurrer  to  the  answer  of  the  said 
C.  D.  (or  of  the  said  defendant),  to-wit: 

[Here  insert  demurrer  in  full.] 

[If  a  party  files  more  than  one  pleading   at  the  same    time,  they 
should  be  numbered  in  their  legal  order,  as,  for  instance,  a  demurrer 

and  answer,  and  the  transcript  may  say (stating  the  date)  - 

the  said  C.  D.  (or  defendant)  filed  his  demurrer  and  answer,  which  are 
filed  subject  to  the  rule.] 

A.  B. 


.  B.   l 

v-      f 
.  D.   | 


And  now,  on  this day  of ,  A.  D.  18 — ,  it  being  the 


day  of  the  said  term  thereof,  this  cause  coming  on  for  hearing  on  the 
plaintiff's  demurrer  to  the  defendant's  answer  [copy  the  entry  of  the 
proceedings  of  the  court,  sustaining  or  overruling  the  demurrer.] 


1396.]  PEACTICE   IN   SUPREME  COURT.  64:9 

And  afterward,  on  the  -       -  day  of  the  said  ,  it  being  the 

day  of  the  said  term,  the  said  plaintiff  filed  his  reply  in  the  words 


and  figures  following,  to- wit: 

[Here  set  out  reply  in  full.] 

And  afterward,  on  the  same  day,  the  said  defendant  filed  motion 
and  affidavit  for  a  continuance,  as  follows,  to-wit: 

[Here  set  out  copy  of  motion  and  affidavit.] 

And  the  same  being  now  heard  and  considered  by  the  court,  the 
said  motion  is  sustained,  and  it  is  ordered  that  this  cause  be  continued 
until  the  next  term  of  the  court  (at  the  cost  of  the  defendant). 

In  the  district  (or  superior)  court,  county. 

A.  B.    ) 

v.       I  term,  A.  D.  18—. 

C.  D.    ) 


And  now,  on  this  day  of ,  it  being  the day  of 

said  term,  this  cause  coming  on  for  trial,  came  a  jury,  to-wit: 

twelve  good  and  lawful  men,  who  were  sworn  well  and  truly  to  try  the 
issue  between  the  said  parties,  and  a  true  verdict  render,  according  to 
the  law  and  evidence  given  them  in  court.  The  jury  retired  to  consider 
on  their  verdict,  and  afterward,  on  the  same  day,  the  jury  returned 
into  court  and  rendered  its  verdict,  as  follows: 

[Here  insert  in  full  the  verdict  as  rendered.] 
[Or  if  the  jury  does  not  return  until  the  next  day.] 

A.  B. 

v. 
C.  D. 

And  afterward,  on  the day  of ,  A.  D.  18—,  the  jury  in 

the  foregoing  cause  returned  into  court  and  rendered  its  verdict  as 
follows: 

[Here  insert  in  full  the  verdict  as  rendered.] 

A.  B. 


i.  D.  . 

V'      f 
1  D.   \ 


C. 

And  afterward,  on  the day  of ,  A.  D.  18—,  being  the 

day  of  said  term,  the  shorthand  reporter  filed  his  report  in  writ- 
ing, or  in  shorthand  (as  the  case  may  be)  certified  as  required  by  law, 
the  translation  of  which,  duly  certified,  was  filed  on  the  -  -  day  of 
,  A.  D.  18 — ,  and  is  as  follows:  [Here  attach  the  original  transla- 
tion unless  otherwise  directed  by  order  of  the  supreme  court,  or  a  judge 
thereof.] 

A.  B. 

C 

Now,  on  this day  of ,  A.  D.  18—   the  plaintiff  filed  his 

motion  for  a  new  trial,  to-wit: 


.  B.  , 

Y'      f 
!.  D.   \ 


650  PRACTICE  IX  SUPREME  COURT.          [§  1397. 

[Here  insert  in  full  the  motion  for  a  new  trial.] 
A.  B.   , 

v-     h 

C.  D.    [ 

And  now,  on  this day  of ,  A.  D.  18 — ,  this  cause  coming 

up  for  a  hearing  on  the  motion  of  the  plaintiff  for  a  new  trial,  it  is  con- 
sidered by  the  court,  that  the  same  be  overruled  (or,  as  the  case  may 
be). 

[Then  add  the  final  entries  of  record,  comprising  final  judgment, 
etc.,  and  certificate  of  clerk.] 

The  foregoing  form  is  only  an  example,  and  is  to  be 
varied  according  to  the  circumstances.  The  actual  facts 
of  the  case  will  dictate  what  is  to  be  done,  but  in  all  cases 
it  is  to  be  done  substantially  in  like  manner  with  the 
above,  giving  the  proper  order  and  date  of  the  tiling  of 
papers  and  incorporating  them  at  the  proper  date  into 
the  proceedings  of  the  court.  When  the  order  made  by 
this  court,  or  a  judge  thereof,  pursuant  to  rules  22,  23  and 
24,  requires  but  a  part  of  the  record  to  be  transcribed, 
the  foregoing  form  should  be  so  modified  as  that  it  will 
include  only  those  matters  directed  to  be  certified.  All 
other,  except  the  mere  formal  parts,  must  be  omitted. 
[Code,  §§  3675,  3749,  4122,  4123;  Old  Rules,  §  100.]"  C3 

§  1397.  Of  appeals  in  criminal  actions. — "Sec.  71. 
The  mode  of  reviewing  in  the  supreme  court  any  judg- 
ment, action,  or  decision  of  the  district  court  in  a  crim- 
inal case,  is  by  appeal.  An  appeal  can  only  be  taken 
from  the  final  judgment  and  within  one  year  thereafter. 
Either  the  defendant  or  State  may  appeal.  [Code, 
§  T.448.] 

Sec.  72.  An  appeal  is  taken  and  perfected  by  the 
party  or  his  attorney  serving  on  the  adverse  party  or 
his  attorney  of  record  in  the  district  court  at  the 
time  of  the  rendition  of  the  judgment,  and  on  the  clerk 
of  such  court,  a  notice  in  writing  of  the  taking  of  the  ap- 
peal, and  filing  the  same  with  such  clerk  with  evidence 
of  service  thereof  indorsed  thereon  or  annexed  thereto. 
[Code,  §  5449.] 

Sec.  73.     When  several  defendants  are  indicted  and 

63  Sees.  1327,  1328. 


§  1397.]         PEACTICE  IN  SUPREME  COURT.  651 

tried  jointly,  any  one  or  more  of  them  may  join  in  taking 
the  appeal,  but  those  of  their  co-defendants  who  do  not 
join  shall  take  no  benefit  therefrom,  yet  they  may  appeal 
afterwards.  [Code,  §  5451.] 

Sec.  74.  When  an  appeal  is  taken,  it  is  the  duty  of  the 
clerk  of  the  court  in  which  the  judgment  was  rendered 
to  forthwith  prepare  and  transmit  to  the  attorney-gener- 
al a  certified  copy  of  the  notice  of  appeal  in  the  case,  with 
the  date  of  service  thereof,  and,  without  unnecessary  de- 
lay, to  make  out  a  full  and  perfect  transcript  of  all  papers 
in  the  case  on  file  in  his  office,  except  the  papers  returned 
by  the  examining  magistrate  on  the  preliminary  exam- 
ination, where  there  has  been  one,  and  of  all  entries  made 
in  the  record-book,  certify  the  same  under  the  seal  of  the 
court,  and  transmit  the  same  to  the  clerk  of  the  supreme 
court.  [Code,  §  5450.] 

Sec.  75.  An  appeal  taken  by  the  State  in  no  case  stays 
the  operation  of  a  judgment  in  favor  of  the  defendant. 
[Code,  §  5452.] 

Sec.  76.  An  appeal  taken  by  the  defendant  does  not 
stay  the  execution  of  the  judgment,  unless  bail  is  put  in; 
but  where  the  judgment  is  imprisonment  in  the  peni- 
tentiary, and  an  appeal  is  taken  within  ninety  days  after 
judgment  is  rendered,  and  the  defendant  is  unable  to 
give  bail,  and  that  fact  is  satisfactorily  shown  to  the 
court,  or  judge  thereof,  it  may,  in  its  discretion,  order  the 
sheriff  or  officer  having  the  defendant  in  custody  to  de- 
tain him  in  custody,  without  taking  him  to  the  peniten- 
tiary, to  abide  the  judgment  on  the  appeal,  if  the  defend- 
ant desires  it.  [Code,  §  5453.] 

Sec.  77.  When  an  appeal  is  taken  by  the  defendant, 
and  bail  is  given,  the  clerk  must  give  to  the  defendant, 
or  his  attorney,  a  certificate  under  the  seal  of  the  court 
that  an  appeal  has  been  taken  and  bail  given,  and  the 
sheriff  or  other  officer  having  the  defendant  in  custody 
must,  upon  receiving  it,  discharge  the  defendant  from 
custody  and  cease  all  further  proceedings  in  execution 
thereof,  and  forthwith  return  to  the  clerk  of  the  court 


652  PRACTICE  IX  SUPREME  COURT.          [§  1397. 

who  issued  it  the  execution  under  which  he  acted,  with 
his  return  thereon,  and  if  it  has  not  been  issued,  it  shall 
not  be  until  after  final  judgment  on  the  appeal.  [Code, 
§  5454.] 

Sec.  78.  The  party  appearing  is  the  appellant,  the 
adverse  party  the  appellee,  but  the  title  of  the  action 
shall  not  be  changed  on  the  appeal,  and  the  cause  shall 
be  so  docketed  at  the  commencement  of  the  period  as- 
signed for  trying  causes  from  the  judicial  district  from 
which  the  appeal  comes,  which  causes  shall  take  pre- 
cedence of  all  other  business,  be  tried  at  the  term  at 
which  the  transcript  is  filed,  unless  continued  for  cause 
or  by  consent  of  the  parties,  and  be  decided,  if  practi- 
cable, at  the  same  term.  [Code,  §  5455.] 

Sec.  79.  The  personal  appearance  of  the  defendant 
in  the  supreme  court  on  the  trial  of  an  appeal  is  in  no  case 
necessary.  [Code,  §  5456.] 

Sec.  80.  An  appeal  shall  not  be  dismissed  for  any  in- 
formality or  defect  in  taking  it,  if  corrected  in  a  reason- 
able time,  and  the  supreme  court  must  direct  how  it  shall 
be  corrected.  [Code,  §  5457.] 

Sec.  81.  No  assignment  of  error  is  necessary.  [Code, 
§  5458.] 

Sec.  82.  Criminal  actions  shall  be  presented  in  the 
supreme  court,  by  printed  abstracts,  denials,  arguments 
and  petitions  for  rehearing,  as  required  by  the  rules  ap- 
plicable to  civil  actions,  provided  that  the  defendant  shall 
be  entitled  to  close  the  argument.  The  provisions  of  the 
code  and  the  rules  of  the  court  in  civil  procedure  relating 
to  the  printing,  serving  and  filing  of  abstracts,  denials, 
arguments,  petitions  for  rehearing,  notice  thereof  and  of 
oral  arguments,  motions  and  resistances  thereto,  the 
certification  of  the  record  and  the  filing  of  decisions  and 
opinions,  shall  apply  in  criminal  cases.  [Code,  §§  5459, 
5461.] 

Sec.  83.  If  the  appeal  is  taken  by  the  defendant  the 
supreme  court  must  examine  the  record,  without  regard 
to  technical  errors  or  defects  which  do  not  affect  the  sub- 


§  1397.]         PRACTICE  IX  SUPREME  COURT.  G53 

stantial  rights  of  the  parties,  and  render  such  judgment 
on  the  record  as  the  law  demands;  it  may  affirm,  re- 
verse, or  modify  the  judgment,  or  render  such  judgment 
as  the  district  court  should  have  done,  or  order  a  new 
trial,  or  reduce  the  punishment,  but  cannot  increase  it. 
And  in  case  the  judgment  of  the  trial  court  is  reversed 
or  modified  in  favor  of  the  defendant  on  the  appeal  of 
the  defendant,  he  shall  be  entitled  to  recover  the  cost 
of  printing  abstract  and  briefs  not  exceeding  one  dollar 
for  each  page  thereof,  to  be  paid  by  the  county  from, 
which  the  appeal  was  taken.  [Code,  §  5462.] 

Sec.  84.  If  the  state  appeals  the  supreme  court  can- 
not reverse  or  modify  the  judgment  so  as  to  increase  the 
punishment,  but  may  affirm  it,  and  shall  point  out  any 
error  in  the  proceedings,  or  in  the  measure  of  punish- 
ment, and  its  decision  shall  be  obligatory  at  law.  [Code, 
§  5463.] 

Sec.  85.  If  a  judgment  against  the  defendant  is  re- 
versed without  ordering  a  new  trial,  the  supreme  court 
must  direct  that  the  defendant  be  discharged  and  his 
bail  exonerated,  or  if  money  be  deposited  instead,  that 
it  be  refunded  to  him.  [Code,  §  5464.] 

Sec.  86.  On  a  judgment  of  affirmance  against  the  de- 
fendant, the  original  judgment  shall  be  carried  into  ex- 
ecution as  the  supreme  court  shall  direct,  except  as  other- 
wise provided.  [Code,  §  5465.] 

Sec.  87.  The  decision  of  the  supreme  court,  with  any 
opinion  filed,  or  judgment  rendered,  must  be  recorded 
by  its  clerk  and  after  the  expiration  of  the  period  al- 
lowed for  a  rehearing  or  as  ordered  by  the  court,  or  pro- 
vided by  its  rules,  a  certified  copy  of  the  decision  and 
opinion  shall  be  transmitted  to  the  clerk  of  the  trial 
court,  filed  and  entered  of  record  by  him,  and  there- 
after the  jurisdiction  of  the  supreme  court  shall  cease 
and  all  proceedings  necessary  for  executing  the  judg- 
ment shall  be  had  in  the  trial  court,  or  by  its  clerk. 
[Code,  §  5466.] 

Sec.  88.     Unless  some  proceeding  in  the  district  court 


654  PEACTICE   IN    SUPEEilE  COUKT.       [§§  1398,    1399. 

is  directed,  a  copy  of  the  judgment  of  the  trial  court  and 
decision  on  appeal,  or  of  the  judgment  and  decision  on 
appeal,  certified  by  the  clerk  of  the  trial  court,  shall  be 
delivered  to  the  sheriff,  or  other  proper  officer,  as  an  exe- 
cution, and  shall  authorize  him  to  execute  the  judgment 
of  the  court,  or  take  any  steps  required  to  bring  the  ac- 
tion to  a  conclusion.  [Code,  §  5467.] 

Sec.  89.  If  a  defendant,  imprisoned  during  the  pen- 
dency of  an  appeal,  upon  a  new  trial  ordered  by  the  su- 
preme court,  is  again  convicted,  the  period  of  his  former 
imprisonment  shall  be  deducted  from  the  period  of  im- 
prisonment to  be  fixed  on  the  last  verdict  of  conviction. 
[Code,  §  5468.]" 

§  1398.  Of  the  construction  and  modification  of 
the  rules. — "Sec.  90.  When,  by  reason  of  peculiar  cir- 
cumstances, the  foregoing  rules  relating  to  the  abstract, 
preparation  and  argument  of  causes,  ought  to  be  waived 
or  modified  in  any  case  the  party  desiring  such  waiver 
or  modification  may,  upon  reasonable  notice  to  the  ad- 
verse party,  apply  to  any  judge  of  this  court  in  vacation, 
or  to  the  court  in  term  time,  for  an  order  directing  the 
waiver  or  modification  desired.  The  application  shall  be 
in  writing,  shall  set  out  the  peculiar  facts  relied  upon  by 
the  applicant,  and  shall  be  verified  by  the  party,  or  a 
person  having  knowledge  of  the  facts,  and  certified  by 
counsel  as  being  true  and  made  in  good  faith.  The  order 
upon  such  application  shall  be  in  writing,  and  shall  be 
filed  with  the  clerk  of  this  court.  In  no  case  will  these 
rules  be  waived  or  modified  upon  agreement  of  counsel 
alone.  [Old  Rules,  §  101.]"  64 

§  1399.  Of  the  distribution  of  printed  matter.— 
"Sec.  91.  The  clerk  shall  make  the  following  distribu- 
tion, of  all  printed  abstracts,  denials  of  abstracts,  briefs 
and  arguments  received  under  the  foregoing  rules:  One 
copy  to  each  judge  of  the  court,  one  copy  to  the  State 
library,  two  copies  to  the  law  department  of  the  State 
university,  and  the  remainder  shall  be  placed  in  his  office, 

64  Sec.   1334. 


§§  14:00,  1401. "J  PRACTICE  IX  SUPREME  COURT.  655 

one  copy  of  which  shall  remain  permanently  among  the 
files.     [Old  Kules,  §  102.]"  C5 

§  1400.  Of  the  return  of  papers  and  exhibits.— 
"Sec.  92.  If  a  new  trial  is  granted,  the  clerk,  as  soon  as 
the  cause  is  at  an  end  in  the  supreme  court,  shall  trans- 
mit to  the  clerk  of  the  court  below  all  original  papers 
or  exhibits  certified  up  from  said  court;  if  a  new  trial 
is  not  awarded,  or  if  the  cause  is  triable  de  novo,  either 
party  desiring  to  withdraw  the  same  may,  by  motion, 
showing  proper  grounds  therefor,  and  upon  five  days' 
notice  to  the  other  party  or  his  attorney,  secure  an  order 
from  the  court  or  a  judge  thereof,  allowing  him  to  do  so, 
upon  filing  a  receipt  for  the  same  with  the  clerk  of  this 
court.  [Code,  §  4126;  Old  Kules,  §  113.]"  66 

§  1401.  Of  costs.— "Sec.  93.  The  appellant  may  be 
required  to  give  security  for  costs,  under  the  same  cir- 
cumstances and  upon  the  same  showing  as  plaintiffs  in 
civil  actions  in  the  inferior  courts  may  be.  [Code, 
§  4135.]67 

Sec.  94.  When  the  parties,  or  their  attorneys,  shall 
furnish  printed  abstracts,  denials  of  abstracts,  briefs,  ar- 
guments or  petitions  for  rehearing  in  conformity  to  the 
rules  of  this  court,  the  clerk  will  tax  the  actual  cost  of 
printing  the  same,  which  shall  not  exceed  the  sum  of  one 
dollar  for  every  five  hundred  words,  embraced  in  a  single 
copy  thereof,  against  the  unsuccessful  party  not  furnish- 
ing the  document,  to  be  collected  and  paid  to  the  success- 
ful party  as  other  costs.  It  will  be  the  duty  of  any  party 
who  files  any  printed  matter  to  state,  either  on  the  title 
page  or  at  the  end  of  the  document,  in  writing  or  i_  print, 
and  have  certified  by  his  attorney  as  being  correct,  the 
actual  cost  of  the  printing  of  the  same,  and  no  costs  wil 
be  taxed  for  such  printing  unless  this  statement  is  made. 
[Code,  §  4142;  Old  Rules,  §  95.] 

Sec.  95.     If  any  denial  of  the  abstracts,  transcript: 
records  is  made,  or  if  an  additional  abstract  is  filed,  with- 

e8  Sec.  1346.  67  Sec-  1353' 

eo  Sec.  1357. 


656  PEACTICE  IX  SUPEEME  COUET.          [§  1401. 

out  good  and  sufficient  cause,  the  costs  of  the  same,  or 
any  unnecessary  part  thereof,  and  of  any  transcript 
thereby  made  necessary,  shall  be  taxed  to  the  party  caus- 
ing the  same;  and  when  any  unnecessary  costs  have  been 
made  by  either  party  the  court  will,  upon  application, 
tax  the  same  to  the  party  making  them  without  refer- 
ence to  the  disposition  of  the  case.  [Code,  §§  4118,  4120; 
Old  Rules,  §  95.]68 

Sec.  96.  Whenever  the  translation  of  the  shorthand 
notes  is  required  to  be  filed  in  this  court,  the  clerk  shall 
tax  as  part  of  the  costs  in  the  case,  the  expense  of  pro- 
curing the  same,  which  shall  not  exceed  the  rate  of  five 
cents  per  hundred  words.  If  the  amount  paid  or  agreed 
to  be  paid  is  not  stated  in  the  translation  so  filed,  the 
clerk  shall  tax  at  the  statutory  rate.  [Code,  §  4142.] 

Sec.  97.  All  other  taxable  fees  and  costs  shall  abide 
the  result  of  the  appeal  and  be  taxed  to  the  unsuccessful 
party  unless  otherwise  ordered.  [Code,  §§  3853,  4142.]" 

§  1402.  Of  the  admission  of  attorneys.—  "Sec.  98. 
Examinations  of  applicants  for  admission  to  the  bar  will 
be  held  at  each  regular  term  of  court,  commencing  on  the 
first  day  of  the  term.  [Old  Rules,  §  103.] 

Sec.  99.  Each  applicant  for  admission  shall,  at  least 
five  days  before  the  first  day  of  the  term  at  which  he  asks 
to  be  examined,  file  with  the  clerk  a  written  request  for 
examination  in  his  own  handwriting  and  signed  by  him- 
self, accompanied  with  proofs  of  his  qualifications  as  to 
age,  residence,  and  character  and  time  of  study,  as  re- 
quired by  Code,  §  310,  all  prepared  and  presented  in  the 
manner  prescribed  by  these  rules.  [Old  Rules,  §  104.] 

Sec.  100.  Proof  of  qualification  as  to  age,  character, 
place  of  residence,  and  time  and  place  of  study,  shall  be 
by  affidavit  made  before  some  officer  authorized  to  ad- 
minister oaths.  When  made  before  an  officer  not  hav- 
ing a  seal,  other  than  a  judge  of  the  supreme,  district  or 
superior  courts  of  this  State,  his  official  character  and 
signature  shall  be  authenticated  by  a  proper  certificate 

«s  Sec.  1333. 


§  1401.]         PRACTICE  IX  SUPREME  COURT.  657 

attested  by  the  seal  of  the  clerk  of  a  court  of  record. 
Proof  of  the  applicant's  character,  residence  and  age 
shall  be  by  affidavits  from  at  least  two  witnesses,  and  the 
applicant  shall  also  make  affidavit  as  to  his  age  and  place 
of  residence.  Proof  of  his  term  of  study  shall  be  by  affi- 
davit of  the  member  of  the  bar,  or  judge,  with  whom  he 
pursued  his  studies;  and  when  he  has  studied  at  a  law 
school,  such  fact  and  his  term  of  study  shall  be  shown  by 
the  affidavit  of  one  or  more  of  the  professors  or  instruct- 
ors of  such  school.  Such  affidavits  must  show  that  the 
applicant  has  actually  and  in  good  faith  pursued  the 
tudy  of  the  law  in  the  manner  and  for  the  time  pre- 
scribed by  the  statute;  and  must  also  show  that  the  affi- 
ant is  a  practicing  lawyer,  judge  of  a  court  of  record,  or 
professor  or  instructor  in  a  law  school  at  which  the  appli- 
cant studied.  [Code,  §  315;  Old  Rules,  §  108.] 

Sec.  101.  In  estimating  the  time  of  study,  a  school 
year  of  thirty-six  weeks  spent  at  a  reputable  law  school 
in  the  United  States  shall  be  equivalent  to  a  full  year 
spent  in  an  office,  and  a  fraction  of  a  school  year  spent  in 
such  law  school  shall  be  considered  the  equivalent  of  the 
same  fraction  of  a  full  year  spent  in  the  office  of  an  attor- 
ney or  judge.  [Code,  §  310;  Old  Rules,  §  112.] 

Sec.  102.  On  the  morning  of  the  first  day  appointed 
for  the  examination,  the  court  will  appoint  a  committee 
of  not  less  than  three  members  of  the  bar,  who,  with  the 
attorney-general,  as  ex  officio  chairman  of  the  committee, 
will  assist  in  the  examination  of  applicants  for  admis- 
sion. [Old  Rules,  §  105.] 

Sec.  103.  The  court  will  also  prepare  not  less  than 
thirty  printed  questions  to  be  submitted  to  each  appli- 
cant, which  he  shall  answer  in  writing.  While  engaged 
in  answering  these  questions  he  shall  not  have  access  to 
books  or  papers,  nor  will  he  communicate  with  any  one 
upon  the  subject  of  the  examination.  The  printed  ques- 
tions will  be  varied  at  each  term.  [Old  Rules,  §  106.] 

Sec.  104..  Upon  consideration  of  the  proofs  as  to  quali- 
fication and  of  the  oral  and  written  examinations,  the 

Vol.  11—42 


658  PRACTICE  IX  SUPREME  COURT.          [§  14:01. 

court  will  admit  or  reject  the  candidate.  [Old  Rules, 
§  107.] 

Sec.  105.  Students  in  the  law  department  of  the  uni- 
versity who  are  recommended  by  the  faculty  of  said  de- 
partment as  candidates  for  graduation,  and  as  persons  of 
good  moral  character  who  have  actually  and  in  good 
faith  studied  law  for  the  time  and  in  the  manner  required 
by  statute,  at  least  one  year  of  such  study  having  been  as 
a  student  in  said  department,  may  be  examined  at  the 
university  by  a  committee  composed  of  not  less  than 
three  persons,  members  of  the  bar,  or  judges  of  courts  of 
record,  appointed  by  the  supreme  court  for  that  purpose, 
and  upon  the  certificate  of  such  committee  that  such  can- 
didates possess  the  learning  and  skill  requisite  for  the 
practice  of  law,  they  shall  be  admitted  without  further 
examination.  [Code,  §  312.] 

Sec.  106.  The  chief  justice  or  any  judge  of  this  court 
may  administer  the  oath  prescribed  by  the  statute  at 
Iowa  City  to  each  and  every  person  recommended  by  the 
examining  committee  appointed  to  examine  students  of 
the  law  department,  and  the  person  so  administering  the 
oath  shall  report  to  the  clerk  of  this  court  the  names  and 
postomce  addresses  of  the  persons  so  admitted.  The  clerk 
will  thereupon  enter  of  record  the  fact  of  their  admission, 
and  upon  payment  of  the  requisite  fee  will  issue  to  each 
of  the  persons  so  reported,  a  certificate  of  admission  to 
the  bar.  [Old  Eules,  §  110.] 

Sec.  107.  Any  person  who  becomes  a  resident  of  this 
State  after  having  been  admitted  to  the  bar  of  any  other 
of  the  United  States  in  which  he  has  previously  resided, 
upon  satisfactory  proof  that  he  is  at  least  twenty-one 
years  of  age,  of  good  moral  character  and  an  inhabitant 
of  this  State,  and  that  he  has  practiced  law  regularly  for 
not  less  than  one  year  in  the  State  from  which  he  came, 
may  be  admitted  to  practice  in  this  State,  without  exam- 
ination or  proof  of  the  period  of  study  required  of  other 
applicants.  Proof  of  admission  to  the  bar  in  another 
State  may  be  made  by  the  original  certificate  of  adniis- 


§  1401.]         PEACTICE  IN  SUPEEME  COUET.  659 

sion,  or  by  a  duly  authenticated  copy  of  the  record  show- 
ing his  admission  to  the  bar,  proved  as  records  of  sister 
States  must  be  when  admitted  in  evidence  in  the  courts 
of  this  State.  Proof  of  other  qualifications  must  be  made 
in  the  same  manner  as  the  showing  required  of  appli- 
cants for  examination.  [Code,  §  313;  Old  Rules,  §  109.] 

Sec.  108.  Any  member  of  the  bar  of  another  State  act- 
ually engaged  in  any  cause  or  matter  pending  in  this 
court  may  appear  in  and  conduct  such  cause  or  matter, 
while  retaining  his  residence  in  such  other  State,  with- 
out being  admitted  to  practice  under  the  foregoing  pro- 
visions. [Code,  §  316.]" 

Any  young  man  applying  for  admission  to  the  bar 
should  study  these  rules  so  that  he  may  in  all  respects 
comply  with  them.  It  should  be  understood  that  they 
are  rigidly  enforced,  and  every  term  of  court  applicants 
are  prevented  from  taking  the  examination  because  they 
have  failed  in  some  particular  to  comply  with  the  re- 
quirements of  the  rules. 

The  examinations  are  thorough  and  exhaustive,  and  no 
applicant  should  apply  for  examination  unless  thorough- 
ly prepared. 


CHAPTER  LXXXVI. 

OF   THE   UNWRITTEN   PRACTICE    OF   THE    SUPREME    COURT.* 

Sec.  1403.  Preliminary  statement. 

1404.  Of  advancing  causes. 

1405.  Of  oral  arguments. 

1406.  Of  the  submission  of  causes. 

1407.  Of  setting  aside  submissions. 

1408.  Of  restraining  orders. 

1409.  Of  alimony  in  divorce  proceedings. 

1410.  Of  attorney's  fees. 

1411.  Of  costs. 

Section  1403.  Preliminary  statement.  —  The  stat- 
utes and  written  rules  which  relate  to  the  practice  in  the 
supreme  court,  although  comprehensive,  do  not  show 
fully  the  practice  in  all  cases.  Rules  have  been  estab- 
lished by  usage  and  are  recognized  and  habitually  applied 
by  the  court,  which  are  in  the  nature  of  additions  to  the 
written  rules,  or  are  entirely  independent  of  them,  and 
concerning  which  the  published  reports  of  the  court  give 
but  little  information.  Some  of  these  rules  are  stated 
and  the  practice  under  them  considered  in  this  chapter. 

§  1404.  Of  advancing  causes. — Section  19  of  the 
statutes  and  rules  regulating  practice  in  the  supreme 
court  is  as  follows:  "If  a  cause  involves  the  decision 
of  a  question  of  public  importance,  or  rights  which  are 
likely  to  be  lost  or  greatly  impaired  by  delay,  the  court 
will,  in  its  discretion,  upon  motion  supported  by  affi- 
davit, order  the  submission  of  the  cause  at  a  term  in  ad- 
vance of  that  at  which  it  would  otherwise  be  submitted." 

This  rule  was  designed  to  state  in  a  formal  manner  a 
well,  established  practice  of  the  court  to  set  down  for  sub- 

*  This  chapter  was  written  at  the  request  of  the  author  by  Judge 
G.  S.  Robinson,  of  the  supreme  bench  of  this  State. 

GGO 


§  1404.]         UNWRITTEN   PRACTICE  IN  SUPEEME  COURT.  661 

mission  in  advance  of  its  regular  order  causes  which  in- 
volve questions  of  public  and  general  importance,  as  the 
interpretation  of  a  statute  of  the  general  assembly  or  an 
ordinance  of  a  city  or  town  which  affects  the  current 
business  interests  of  many  people,  especially  if  it  be  of 
a  penal  nature.  A  cause  which  involves  a  controversy 
in  regard  to  real  property  which  has  been  sold  at  judicial 
or  tax  sale,  wrhere  the  right  of  redemption  is  likely  to  ex- 
pire and  be  lost  before  the  cause  can  be  submitted  and 
determined  in  its  regular  order  may  be  advanced.  A 
cause  which  involves  a  question  of  controlling  import- 
ance, common  to  several  cases  which  may  be  disposed 
of  by  a  determination  of  the  question,  may  also  be  ad- 
vanced, not  necessarily  because  of  the  amount  of  inter- 
ests involved,  but  in  part  to  diminish  litigation.  If,  in 
any  case,  valuable  rights  are  likely  to  be  lost  or  greatly 
impaired  by  delay,  the  cause  will  be  advanced.  This  has 
been  done  frequently  in  cases  involving  the  right  to  hold 
a  public  office  where  a  claimant  has  been  excluded  from 
the  office  and  the  term  is  likely  to  end  before  his  case 
can  be  determined  in  its  regular  order. 

Criminal  causes  are  always  advanced  without  applica- 
tion therefor,  and  take  precedence  of  all  other  business 
from  the  judicial  district  from  which  they  are  appealed.1 

Doubtless  causes  will  be  advanced  for  other  reasons 
than  those  given.  The  power  to  advance  is  exercised  by 
the  court  in  the  interest  of  justice,  but  with  due  regard 
to  the  rights  of  all  litigants  who  have  claims  upon  the 
time  of  the  court. 

Ordinarily  a  cause  will  not  be  advanced  merely  be- 
cause it  involves  a  large  amount  of  money  or  other  prop- 
erty, nor  because  numerous  persons  are  interested  in  it. 
A  cause  can  not  be  advanced  by  agreement  of  parties 
alone,  unless  it  be  of  a  character  to  justify  its  advance- 
ment, under  the  rule  the  agreement  of  parties  to  advance 
it  will  not  be  given  effect. 

The  application  to  advance  a  cause  should  be  made  by 

i  Rules,  Sec.  78. 


662  UNWRITTEN   PRACTICE  IN   SUPREME  COURT.          [§  1405. 

motion  supported  by  affidavits  or  by  statements  based 
upon  the  record  before  the  court,  and  should  show  clearly 
the  grounds  upon  which  an  advancement  is  asked.  Due 
notice  of  the  application  should  be  given  to  the  adverse 
party,  and  resistance  thereto  may  be  made  as  in  other 
cases.  When  a  cause  is  advanced  it  is  determined  at  the 
earliest  date  practicable  after  submission. 

§  1405.  Of  oral  arguments. — Sections  39  to  44  in- 
clusive of  the  printed  rules  prescribe  the  time  and  meth- 
od of  preparing,  serving  and  filing  printed  arguments 
and  the  notice  of  oral  arguments  and  the  time  and  order 
in  which  they  may  be  made,  with  sufficient  fullness  for 
most  cases.  But  questions  frequently  arise  for  which  the 
rules  do  not  in  terms  provide,  but  which  are  determined 
by  the  settled  practice  of  the  court. 

Proceedings  by  certiorari  may  be,  and  frequently  are, 
instituted  in  the  supreme  court,  and  are  prepared  for 
submission  in  the  same  manner,  so  far  as  is  practicable, 
as  are  other  cases.  Printed  arguments  must  be  served 
and  filed  under  the  rules,  and  the  failure  to  serve  and 
file  them  is  attended  with  the  same  consequences  as  it 
would  be  in  other  cases. 

Oral  arguments  on  motions  are  not  permitted,  but  ar- 
guments in  writing  or  in  print  are  invited  and  desired, 
not  only  in  support  but  also  in  resistance  of  the  motion. 
It  is  good  practice,  when  practicable,  to  submit  a  mo- 
tion with  the  case,  when  that  is  submitted  for  final  de- 
termination, and  to  argue  the  motion  in  the  printed 
briefs.  Of  course  that  can  not  be  done  when  a  determin- 
ation of  the  motion  is  required  before  the  case  is  sub- 
mitted, but  in  such  cases  written  or  printed  arguments 
are  desired. 

Parties  are  not  permitted  to  change  the  order  in  which 
oral  arguments  shall  be  made,  nor  to  fix  the  time  for  oral 
argument  at  a  date  not  included  in  the  time  of  the  as- 
signment in  which  the  cause  appears,  without  the  con- 
sent of  the  court  and  that  is  given  rarely,  and  only  for 
reason  of  unusual  importance.  If  the  business  of  the 


§  14U6.]         UNWRITTEN   PRACTICE  IN  SUPREME  COURT.  663 

court  justified  such  an  order,  a  cause  would  be  set  down 
for  oral  argument  at  a  time  not  included  in  the  assign- 
ment to  which  the  cause  belongs;  and  in  rare  cases,  in- 
volving matters  of  controlling  and  urgent  importance, 
cases  have  been  assigned  for  oral  argument  in  advance 
of  the  assignment  in  which  they  would  regularly  appear. 
But  such  cases  are  exceptional,  and  the  orderly  adminis- 
tration of  the  business  of  the  court  and  the  interests  of  all 
parties  who  have  business  in  it,  require  that  the  rules  in 
regard  to  the  presentation  and  submission  of  causes  be 
habitually  followed. 

If  a  cause  is  not  ready  for  submission  when  it  is 
reached  in  its  order,  it  is  passed  to  the  foot  of  the  assign- 
ment, but  the  right  to  submit  it  on  oral  argument  is  not 
thereby  waived.  All  parties  who  have  given  due  notice 
of  oral  argument  are  entitled  to  be  heard  before  any  oral 
argument  in  the  next  assignment  is  made,  even  though 
the  time  of  the  assignment,  to  which  the  case  to  be  ar- 
gued orally  belongs,  is  insufficient,  and  time  included  in 
the  next  assignment  is  required  for  the  oral  argument. 
An  agreement  of  parties  to  submit  a  cause  without  oral 
argument  on  a  later  date  than  the  one  assigned  for  it  will 
be  given  effect  by  the  court. 

§  1406,  Of  the  submission  of  causes. — It  is  the 
duty  of  the  clerk  of  the  court  to  arrange  and  set  a  proper 
number  of  causes  for  trial  for  each  day  of  a  term  of  court, 
placing  together  those  from  the  same  judicial  district.2 
A  preliminary  call  of  all  the  causes  included  in  each  as- 
signment is  made  when  the  assignment  is  reached. 
When  that  call  is  made  all  cases  in  which  there  is  an 
argument  for  each  party  which  has  been  duly  served 
and  in  which  no  notice  of  oral  argument  has  been  given 
and  in  which  there  is  no  objection  to  a  submission  called 
to  the  attention  of  the  court,  are  submitted  without  any 
personal  appearance  or  request  therefor  by  either  party. 
On  the  next,  or  peremptory,  call  of  the  assignment,  if 
there  be  an  argument  for  but  one  party  to  an  action,  and 

2  Rules,  Sec.  17. 


G64  UNWRITTEN   PRACTICE   IN  SUPREME   COURT.         [§  1406. 

it  is  the  first  term  at  which  the  cause  could  have  been 
submitted,  and  there  is  no  demand  for  a  submission,  the 
cause  is  passed,  and  if  no  demand  for  a  submission  is 
made  during  the  term  the  cause  is  continued,  but  if  it 
be  the  second  term  at  which  the  cause  has  been  assigned 
for  submission,  and  an  argument  for  the  appellant  has 
been  duly  served  and  filed,  the  cause  is  submitted.  The 
submission  of  a  civil  cause  for  determination  on  the  mer- 
its is  not  taken  unless  there  be  an  argument  for  the  ap- 
pellant, even  though  the  burden  of  showing  a  cause  of 
action  be  upon  the  appellee,  and  there  is  an  argument  for 
him  on  file.  In  such  a  case  the  appellant  will  be  deemed 
to  have  abandoned  his  appeal  and  the  judgment  of  the 
trial  court  will  be  affirmed  or  the  appeal  will  be  dis- 
missed without  regard  to  the  merits  of  the  case.3  That 
would  not  be  true  where  the  appellee  has  also  appealed 
and  has  duly  served  and  filed  a  printed  argument.  In 
such  a  case  the  questions  involved  in  the  appeal  of  the 
appellee  would  be  considered,  and,  so  far  as  necessary, 
determined. 

The  rules  requiring  arguments  are  not  strictly  fol- 
lowed in  criminal  cases,  and  such  cases  are  usually  con- 
sidered on  their  merits  even  though  no  printed  argu- 
ment be  filed,  notwithstanding  the  fact  that  the  general 
rules  which  govern  the  submission  of  causes  apply  in 
criminal  as  well  as  in  civil  causes. 

Oral  arguments  are  permitted  on  a  petition  for  rehear- 
ing, when  the  party  applying  therefor  gives  notice  there- 

!  in  his  petition,4  but  if  a  petition  be  sustained  the  cause 
is  then  set  down  for  submission  on  printed  arguments, 
and  no  further  oral  argument  is  permitted. 

If  a  party  do  not  desire  to  make  an  oral  argument  it  is 
rarely  necessary  for  him  to  be  present  in  court  when  his 
case  is  called.  If  it  appear  to  be  ready  for  submission  and 

3  objection  is  made  a  submission  is  taken.  If  the  ap- 
pellee has  not  served  and  filed  a  printed  argument  but 


282. 


sRaynor    v.    Raynor,    77    Iowa,  *  Rules,  Sec.  64. 


§  1407.]         UXWRITTEX   PRACTICE  IX  SUPREME  COURT.  665 

the  appellant  nevertheless  desires  a  submission  of  the 
cause  and  appears  to  be  entitled  to  and  demands  it,  in  the 
absence  of  a  showing-  by  the  appellee  for  a  continuance 
the  submission  will  be  taken.  Ordinarily  it  will  be  suf- 
ficient for  a  party  to  inform  the  clerk  of  his  desire  for  the 
submission  of  a  cause  which  is  ready  on  his  part  for  sub- 
mission, and  if  the  parties  agree  to  a  continuance  or 
other  proper  disposition  of  the  cause  it  will  be  sufficient 
in  most  cases  to  notify  the  clerk  of  the  fact,  and  it  will 
then  be  brought  to  the  attention  of  the  court  and  proper 
action  be  taken.  If  either  party  has  failed  to  serve  his 
argument  the  length  of  time  required  by  the  rules  be- 
fore the  cause  is  reached  in  its  order,  the  adverse  party 
is  entitled  to  a  continuance  of  the  cause. 

§  1407.  Of  setting  aside  submission. — It  some- 
times happens  that  after  the  submission  of  a  cause  a 
party  thereto  discovers  some  omission  or  defect  in  the 
record.  In  such  a  case  he  may  apply  by  motion  before 
the  case  is  decided  to  have  the  submission  set  aside  in 
order  to  cure  the  defect,  and  if  a  proper  showing  of  care 
and  diligence  on  his  part  be  made  the  submission  will  be 
set  aside  and  the  desired  amendments  be  permitted.  It 
is  ordinarily  too  late  to  correct  a  defect  in  the  record 
after  the  case  has  been  decided  as  rehearings  are  not 
granted,  especially  in  civil  cases,  to  give  an  opportunity 
to  correct  the  record.5  That  rule  has  been  somewhat  re- 
laxed in  criminal  cases  in  which  amendments  to  the  rec- 
ord have  sometimes  been  permitted  on  rehearing  on  a 
showing  that  the  defendant  was  free  from  negligence.6 

Notice  of  an  application  to  set  aside  the  submission  of 
a  cause  should  be  served  on  the  adverse  party  and  resist- 
ance thereto  may  be  made  as  provided  in  the  rules  which 
relate  to  motions. 

If  the  printed  arguments  contain  scurrilous  or  other 
improper  matter,  as  unwarranted  attacks  upon  the  trial 
court  or  attorney  for  the  adverse  party,  they  may  be 

s  McDermott  v.  Iowa  Falls  &  S.  e  State  v.  Proctor,  86  Iowa,  699. 

C.  R.  Co.,  85  Iowa,  191. 


6G6  UXWBITTEX   PRACTICE  IN  SUPREME  COURT.          [§  1408. 

stricken  from  the  files  by  the  court  either  with  or  with- 
out a  motion,  or  other  measures,  as  the  taxing  of  costs 
against  the  offending  party  may  be  taken  to  punish  the 
abuse  and  prevent  its  repetition. 

§  1408.  Of  restraining  orders. — In  most  cases  the 
taking  of  an  appeal  and  the  filing  of  a  supersedeas  bond 
stays  proceedings  on  the  judgment  or  order  of  the  trial 
court  until  the  appeal  is  determined.  But  that  is  not  al- 
ways true  of  self-executing  judgments  and  orders  where 
no  act  of  a  ministerial  officer  is  necessary  to  make  it  ef- 
fectual.7 In  some  cases  of  that  kind  the  supreme  court 
has  interfered  by  an  order  restraining  proceedings  on 
the  judgment  or  order  pending  an  appeal  therefrom.  The 
purpose  of  such  an  order  is  to  protect  the  jurisdiction  of 
the  supreme  court  to  prevent  irreparable  injury  and  the 
failure  of  justice,  and  it  will  not  be  granted  if  there  be 
any  other  adequate  remedy. 

The  power  to  make  such  orders  is  exercised  under  the 
provision  of  the  constitution  of  this  State  which  provides 
that  the  supreme  court  shall  have  "power  to  issue  all 
writs  and  process  necessary  to  secure  justice  to  parties, 
and  exercise  a  supervisory  control  over  all  inferior  ju- 
dicial tribunals  throughout  the  State,"8  and  it  may  be 
that  the  power  is  inherent  in  the  court,  not  necessarily 
depending  upon  the  constitutional  provision  cited.  Al- 
though the  power  has  been  exercised  occasionally  for 
many  years  the  method  of  procedure  to  invoke  it  is  not 
well  settled,  nor  can  all  the  cases  in  which  it  may  be  ex- 
ercised be  enumerated.  It  has  been  used  to  restrain  pro- 
ceedings on  a  petition  to  a  board  of  supervisors  asking 
the  relocation  of  a  county  seat.9  It  has  also  been  used 
where  a  temporary  injunction  was  dissolved,  restraining 
pending  an  appeal  from  the  order  of  dissolution,  the 
doing  of  the  acts  which  the  injunction  dissolved  had  pro- 
hibited. It  has  also  been  used  to  restrain,  pending  an 
appeal,  the  enforcement  of  a  judgment  rendered  in  pro- 

7  Elliott's  Appellate  Procedure,  s  Court  of  Iowa,  Art.  V.,  Sec.  4. 

Sec.  292.  »  Luce  v.  Fensler,  85  Iowa,  596. 


§  1409.]          UNWRITTEN   PRACTICE  IN   SUPREME  COUBT.  667 

ceedings  by  certiorari.  The  order  is  sometimes  granted 
by  a  judge  of  the  court,  with  leave  to  apply  to  the  court 
in  a  summary  manner  for  a  review  of  the  order.  Al- 
though that  practice  has  prevailed  for  a  considerable 
number  of  years  the  court  has  not  had  occasion  to  de- 
termine whether  it  is  authorized,  and  its  validity  may  be 
regarded  as  unsettled. 

§  1409.  Of  alimony  in  divorce  proceedings. — 
Section  3177  of  the  code  relates  to  actions  for  divorce  and 
alimony,  and  provides  that:  "The  court  may  order  either 
party  to  pay  the  clerk  a  sum  of  money  for  the  separate 
.support  and  maintenance  of  the  adverse  party  and  the 
children,  and  to  enable  such  party  to  prosecute  or  de- 
fend the  action." 

It  is  the  practice  of  the  supreme  court  to  grant  the  re- 
lief contemplated  by  that  section  in  actions  for  divorce 
and  alimony  pending  an  appeal  in  that  court.  Upon  a 
proper  showing  allowance  will  be  made  for  the  tem- 
porary support  of  the  husband  or  wife,  for  the  temporary 
support  of  their  children,  for  the  expenses  necessary  to 
procure  a  transcript  of  the  record,  to  print  the  abstract 
and  arguments,  to  pay  for  the  services  of  an  attorney, 
and  for  any  other  expense  necessary  to  a  proper  submis- 
sion of  the  cause  in  the  supreme  court.10  The  applica- 
tion for  such  an  allowance  is  ordinarily  made  by  mo- 
tion supported  by  affidavits,  and  in  some  cases  by  refer- 
ence to  the  record  in  the  case,  and  may  be  resisted  by 
counter-affidavits.  The  application  should  show  that  a 
judgment  has  been  rendered  or  an  order  made  by  the  trial 
court  from  which  an  appeal  has  been  taken,  and  facts 
which  show  that  the  allowance  asked  is  not  only  proper 
but  necessary,  as,  for  example,  that  the  applicant  is  with- 
out sufficient  means  to  maintain  herself  and  to  prosecute 
the  appeal,  that  the  cost  of  maintenance  and  of  prose- 
cuting the  appeal  will  be  specific  sums  which  should  be 
stated,  and  that  the  adverse  party  has  sufficient  money 
or  property  for  the  payment  of  the  allowance  asked.  The 

10  Doolittle  v.  Doolittle,  78  Iowa,  695. 


668  U^YRITTEN    PEACTICE   IX   SUPREME  COURT.         [§  1410. 

averments  of  fact  should  be  sufficiently  full  to  enable 
the  court  to  judge  of  the  merits  of  the  application  and 
should  show  when  the  payments  asked  are  required. 
The  resistance  may  set  out  any  facts  which  would  tend 
to  show  that  no  allowance  should  be  made  or  that  it 
should  be  for  a  smaller  sum  than  that  asked.  The  appli- 
cation for  an  allowance  for  temporary  support  and  for 
the  expenses  of  prosecuting  the  appeal  is  usually  made 
before  the  cause  is  ready  for  submission  in  the  supreme 
court,  but  may  be  made  and  submitted  with  the  cause  for 
determination  when  the  cause  is  decided. 

When  the  application  is  submitted  the  court  will  in-, 
vestigate  the  showing  made  and  determine  what  allow- 
ance, if  any,  is  demanded,  and  make  an  order  to  enforce 
its  conclusions. 

§  1410.  Of  attorney's  fees.— Section  1  of  chapter  66 
of  the  acts  of  the  Twenty-first  General  Assembly  provid- 
ed that  in  actions  to  enjoin  nuisances  committed  by  keep- 
ing for  sale  and  selling  intoxicating  liquors  in  violation 
of  law  the  plaintiff,  if  successful  in  the  action,  should  be 
entitled  to  an  attorney's  fee  of  not  less  than  twenty-live 
dollars,  to  be  taxed  and  collected  as  costs  against  the  de- 
fendant. It  was  the  practice  of  the  supreme  court,  under 
that  chapter,  to  tax  an  attorney's  fee  for  services  ren- 
dered in  that  court,  and  also  for  services  rendered  in  the 
court  below,  if  no  allowance  had  been  made  for  such  ser- 
vices, as,  in  case  when  the  plaintiff  had  failed  in  the 
lower  court  but  had  succeeded  in  the  supreme  court.11 

Section  2406  of  the  code  provides  that  if  the  plaintiff 
is  successful  in  an  action  of  the  character  described  "an 
attorney's  fee  of  twenty-five  dollars  shall  be  taxed  as 
costs  in  his  favor."  Section  2429  provides  for  an  allow- 
ance to  the  attorney  who  prosecutes  the  case,  of  a  reason- 
able sum  for  his  services,  and  in  case  a  fine  is  assessed,  for 
ten  per  cent,  of  the  fine  collected.  Whether  there  is  any 
conflict  between  these  sections  so  far  as  they  provide 

11  Hamilton  v.   Baker,  91   Iowa,  101;    Fair  v.  Seaward,  82  Id.,  222; 
Farley  v.  O'Malley,  77,  Id.,  532. 


§  1411.]         UNWRITTEN    PRACTICE  IN   SUPREME  COURT.  GG9 

for  the  allowance  of  an  attorney's  fee  in  actions  in  equity 
to  enjoin  and  abate  nuisances  is  a  question  not  yet  de- 
termined. But  in  view  of  the  practice  of  the  court  under 
prior  statutes  it  can  be  said  with  reasonable  certainty 
that  the  court  will  allow  the  fee  authorized  by  law  in  a 
case  tried  on  appeal,  even  though  it  was  not  allowed  by 
the  court  below. 

§  1411.  Of  costs. — It  is  the  practice  of  the  court, 
when  proper  application  is  made,  to  tax  all  unauthorized 
costs  to  the  party  responsible  for  them,  without  regard 
to  the  final  disposition  made  of  the  cause.12  Thus,  if  the 
abstract  contain  matter  not  material  to  the  determina- 
tion of  any  question  presented  by  the  appeal,13  or  if  it  set 
out  the  testimony  of  witnesses  by  questions  and  answers 
unnecessarily  instead  of  in  a  condensed  narrative  form,14 
costs  of  the  matter  improperly  abstracted  will  be  taxed 
to  the  appellant.  In  a  case  where  an  amendment  to  an 
assignment  of  errors  was  filed  during  the  term  of  court 
at  which  the  cause  was  submitted  all  costs  incurred  prior 
to  the  filing  of  the  amendment  were  taxed  to  the  appel- 
lant.15 

If  the  appellee  deny  the  correctness  or  sufficiency  of  an 
abstract  upon  insufficient  grounds  and  a  transcript  is 
thereby  made  necessary  the  cost  of  the  denial  and  of  the 
transcript  will  be  taxed  to  the  appellee.16  And  if  the  ap- 
pellee set  out  in  an  additional  abstract  matter  which  was 
already  properly  shown  in  the  abstract  of  the  appellant, 
or  if  he  insert  in  the  additional  abstract  any  immaterial 
matter,  or  set  out  material  matter  at  greater  length  than 
is  reasonably  necessary,  the  cost  of  the  improper  part  of 
the  abstract  will  be  taxed  to  the  appellee.17  In  some 
cases,  as  where  the  appellant  succeeds  as  to  a  part  only 

12  Rules,  Sec.  95.  i«  Taylor  v.    Chicago,    M.   &   St. 

is  Bigelow  v.  Hoover,  85    Iowa,  P.  R.  Co.,  80  Iowa,  433;  Bucknell  v. 

164;   Boardman  v.  Willard,  73  Id.,  Deering,  68  N.  W.  Rep.,  827. 

23.  i?  Bowman  v.  Western  Fur  Mfg. 

i*  Jons  v.  Campbell,  84  Iowa,  561.  Co.,  64  N.  W.  Rep.,  778. 

is  Stanley  v.  Barringer.  74  Iowa, 
37. 


670  UNWRITTEN    PRACTICE  IN   SUPREME  COURT.          [§  1411. 

of  several  separate  and  distinct  issues,  the  costs  may  be 
apportioned  between  the  parties  to  the  action. 

Application  for  taxing  costs  is  ordinarily  made  by 
motion,  which  may  be  submitted  with  the  cause  or  pre- 
sented after  the  cause  has  been  determined.  When  a 
party  asks  that  costs  improperly  caused  or  incurred  in 
preparing  the  case  for  submission,  be  taxed  to  the  ad- 
verse party,  it  is  proper  and  the  best  practice  to  submit 
a  motion  therefor  with  the  case.  The  facts  are  then 
fully  investigated  when  the  record  is  examined  for  a  de- 
termination of  the  case  on  the  merits,  and  a  correct  con- 
clusion is  most  easily  reached. 


CHAPTER  LXXXVII. 

OF  THE  FORCIBLE  ENTRY  AND  DETENTION  OF  REAL 

PROPERTY. 

Sec.  1412.  Ct  jurisdiction  of  the  action. 

1413.  When  the  action  lies. 

1414.  Parties  to   the  action. 

1415.  Of  the  notice  to  quit. 

1416.  Of    the    petition. 

1417.  Of  service  of  notice,  appearance,  etc. 

1418.  Of  trial — When  by  equitable  proceedings. 

1419.  When  actions  barred,  etc. 

1420.  Of  the  judgment. 

Section  1412.  Of  jurisdiction  of  the  action. — Here- 
tofore this  action  could  be  brought  only  in  a  justice's 
court.  Now  the  district  and  superior  courts  within  the 
county,  and  justices  of  the  peace  within  the  township 
where  the  subject  matter  of  the  action  is  situated,  have 
concurrent  original  jurisdiction,  and  the  court  first  ac- 
quiring jurisdiction  will  retain  it  until  judgment,  unless 
the  cause  is  transferred  from  a  justice's  court  to  a  supe- 
rior court  or  to  the  district  court,  or  from  a  superior 
court  to  the  district  court,  which  may  be  done  by  the 
agreement  of  the  parties.  In  cases  where  a  judgment  is 
rendered  in  a  justice's  court  an  appeal  may  be  taken  to 
the  district  or  superior  court.1  On  such  an  appeal  an 
amendment  to  the  petition  which  more  particularly  de- 
scribes the  property,  but  does  not  change  the  issue,  is 
permissible.2 

§  1413.  When  the  action  lies. — The  action  may  be 
brought  when: 

1.     The  defendant  has  by  force,  intimidation,  fraud  or 

i  Code,  Sec.  4211.  2  Kuhn  v.  Kuhn,  70-682. 

671 


GT2  DETENTION  OF  PEOPERTY.  [§  1113 

stealth,  entered  upon  the  prior  actual  possession  of  an- 
other in  real  property,  and  detains  the  same. 

"2.  Where  a  lessee  holds  over  after  a  termination  or 
contrary  to  the  terms  of  his  lease. 

3.  Where  the  defendant  continues  in  possession  after 
a  sale  by  foreclosure  of  a  mortgage,  or  on  execution,  un- 
less he  claims  by  a  title  paramount  to  the  lien  by  virtue 
of  which  the  sale  was  made,  or  by  title  derived  from  the 
purchaser  at  the  sale;  in  either  of  which  cases  such  title 
must  be  clearly  and  concisely  pleaded  by  the  defendant. 

4.  For  the  non-payment  of  rent,  when  due.3    Under  a 
prior  corresponding  provision  it  was  held  that  threats 
sufficient  to  induce  fear  of  violent  ouster  would  bring 
the  case  within  the  statute.4    Fraud  in  the  execution  of 
a  lease  under  which  a  defendant  holds  possession  can- 
not be  set  up  by  him  to  justify  his  holding  over  after  the 
expiration  of  such  lease.5    The  tenant  of  property  sold 
under  execution  may  be  ousted  under  this  statute  after 
the  purchaser's  right  to  possession  is  complete,  although 
such  tenant  has  planted  or  sowed  crops  which  have  not 
matured.6 

The  question  involved  is  the  fact  of  possession  alone, 
not  tLe  right  of  possession,  hence  one  may  render  him- 
self liable  to  this  action  by  entering  his  own  premises, 
by  force,  fraud  or  stealth.7  Possession  in  fact  may  exist 
as  to  unenclosed  or  unimproved  land  which  will  be  pro- 
tected in  this  action.8  An  assault  and  battery  is  not 
justifiable  when  made  for  the  purpose  of  taking  posses- 
sion of  property  of  which  another  is  in  peaceable  posses- 
sion.9 And  an  owner  who  forcibly  enters  upon  the  pos- 
session of  one  in  possession  is  liable  for  trespass,  regard- 
less of  the  title  of  the  one  in  possession.10  And  a  writ 
against  a  person  claiming  as  a  tenant  will  not  be  valid 
as  against  another  person  claiming  as  an  under  lessee 

s  Code,  Sec.  4208.  Emsley  v.  Bennett,  37-15;  Lorimier 

*  Harrow  v.  Baker,  2  G.  Gr.,  201.  v.  Lewis,  Mor.,  253. 
5  Simons  v.  Marshall,  3  G.  Gr.,  s  Langworthy  v.  Myers,  4-18. 

502.  9  state  v.  McKinley,  82-445. 

s  Wheeler  v.  Kirkendall,  67-612.          10  Kimball  v.  Shoemaker   82-459 
"•  Stephens    v.    McCloy,    36-659; 


§§  1414,  1415.]     DETENTION  OF  PKOPERTY.  673 

from  such,  tenant  if  such  under  lessee  was  in  possession 
before  the  proceeding  was  commenced.11 

If  it  is  claimed  that  the  defendant  entered  into  pos- 
session by  force,  fraud  or  stealth,  the  latter  may  show 
possession  for  years  under  a  lease  from  the  party  seek- 
ing possession.12 

§  1414.  Parties  to  the  action.  —  The  legal  repre- 
sentatives of  a  person  who,  if  alive,  might  have  been 
plaintiff,  may  bring  this  action  after  his  death.  And  by 
legal  representatives  is  meant  the  executor  or  adminis- 
trator.13 

§  1415.     Of  the  notice  to   quit. — Before  an  action 

.can  be  brought  in  any  except  the  first  of  the  above 

classes  of  cases,  three  days'  notice  to  quit  must  be  given 

the  defendant  in  writing.14    This  notice  may  be  in  the 

following  form: 

FORM  OP  NOTICE  TO  TENANT  TO  QUIT. 

To . 

You  are  hereby  notified  that  I  demand  that  you  quit  and  surrender 
to  me  the  possession  of  the  following  described  premises  situated  in 

the  city  of ,  county  of ,  Iowa,  now  used  and  occupied  by  you 

as  a  dwelling  house  (or  as  the  case  may  be),  to-wit:  (describe  the  prop- 
erty as  accurately  as  possible),  and  if  you  fail  to  do  so  within 

days  (or  within  such  time  as  the  tenant  may  be  entitled  to)  after  the 
service  of  this  notice  on  you,  I  shall  take  the  necessary  legal  steps  to 
obtain  possession  of  said  premises. 

Dated  this  day  of ,  18—. 

(Signature.) 

This  notice  may  be  given  before  the  expiration  of  the 
tenant's  term  and  more  than  three  days  before  the  ac- 
tion is  brought.15  The  service  of  the  notice  is  not  the 
commencement  of  the  action,  and  if  the  time  fixed 
therein  for  the  surrender  of  possession  is  after  the  ex- 
piration of  thirty  days,  peaceable  possession,  as  provided 

11  State  v.  Smith,  70  N.  W.,  604.          i*  Code,    Sec.    4210;     Gifford    v 

12  Peddicord  v.  Kile.  83-542.  King.  54-525. 

is  Code,  Sec.  4209;  Beezley  v.  "  McLain  v.  Calkins,  77-468; 
Burgett,  15-192.  Drain  v.  Ja'cks,  77-629. 

Vol.  II.— 43. 


674:  DETENTION  OF  PROPERTY.  [§  1416. 

in  code,  section  4217,  the  action  will  be  ineffectual.16  The 
service  of  the  notice  being  an  eviction,  the  tenant  upon 
whom  it  is  served  may  relinquish  possession  and  sue  the 
landlord  for  damages  in  case  the  eviction  is  unlawful.17 
If  instead  of  serving  the  three  days'  notice  to  quit,  ser- 
vice is  made  of  a  thirty  days'  notice  to  terminate  a  ten- 
ancy at  will,  as  authorized  under  section  2991  of  the 
code,  the  case  being  one  where  such  thirty  days'  notice 
was  unnecessary,  the  proceedings  under  such  notice, 
after  the  expiration  of  the  thirty  days  from  its  service, 
will  not  be  void,  but  it  will  be  an  irregularity  only.18 

The  notice,  being  the  basis  of  a  private  right  must  be 
proved  as  any  other  matter  in  pais.19 

§  1416.  Of  the  petition.  —  The  petition  must  be 
sworn  to,  and  will  be  sufficient  if  it  conforms  to  the  re- 
quirements of  the  statute.20 

The  petition  may  be  in  the  following  form: 

FORM  OF  PETITION  IN  FORCIBLE  ENTRY  AND  DETAINER. 


Title, 
Venue. 


The  plaintiff  states:     that  on  the  day  of  ,   IS — ,  he 

leased,  by  written  contract  to  the  defendant,  the  following  described 
real  property  (here  describe  it)  situated  in  the  county  of  -  -  and 
State  of  Iowa,  a  copy  of  said  contract  being  hereto  attached  marked 
exhibit  "A"  and  made  a  part  of  this  petition.  That  by  the  terms  of  said 
contract  plaintiff  leased  said  property  to  the  defendant  for  one  year 

from  the  —    —  day  of ,  18 — ,  to  and  including  the day  of 

— ,  18 — .     That  plaintiff  was  when  said  lease  was  made  and  ever 
since  has  been  the  fee  simple  owner  of  said  premises,  and  is  now,  and 

ever  has  been  the  owner  and  holder  of  said  lease.     That  on  the  

*day  of  -  — ,  18 —  (three  days  or  more  before  the  expiration  of  the 
term  of  the  lease),  plaintiff  caused  to  be  served  upon  the  defendant  a 
written  notice  to  quit  and  surrender  the  possession  of  said  premises 
a  copy  of  the  same  being  attached  hereto  marked  exhibit  "B"  and 
made  a  part  hereof. 

That  disregarding  said  notice  and  the  terms  of  his  said  lease,  the 
defendant  holds  and  retains  possession  of  said  premises  contrary  there- 
is  Heiple  v.  Reinhart,  69  N.  W.,          i»  Hollingsworth    v.    Snyder,    2- 
871.  435. 

ifTarpyv  Blume,  70  N.  W.,  620.  20  Code,    Sec.    4212;     Simons    v. 

is  Shriver    v.    Klinkenberg,    67-       Marshall,  3   G.   Gr.,   502. 
544. 


§§  1417-1420.]  DETENTION   OF   PROPERTY.  675 

to,  and  in  violation  of  the  terms  of  said  lease,  his  said  term  having  ex- 
pired on  the  day  of ,   18 — . 

Wherefore  plaintiff  prays  for  judgment  against  the  defendant 
removing  him  from  the  premises  and  that  plaintiff  be  put  in  possessioa 
thereof,  that  an  execution  issue  accordingly  and  for  costs. 

— ,  attorney  for  plaintiff, 

(Add  verification  and  attach  exhibits  referred  to.) 

§  1417.  Of  service  of  notice — Appearance,  etc.— 
The  action  is  commenced  by  the  service  of  an  original 
notice,  as  in  other  cases.  If  it  is  made  to  appear  by  affi- 
davit that  personal  service  of  the  original  notice  cannot 
be  made  upon  the  defendant  within  this  state,  the  same 
may  be  made  by  publication.21  The  time  for  appearance 
and  pleading  is  the  same  as  in  other  cases.22 

§  1418.  Of  trial — When  by  equitable  proceedings. 
—When  title  is  put  in  issue  the  cause  must  be  tried  by 
equitable  proceedings.  The  appearance  term  will  be  the 
trial  term,  and  no  continuance  will  be  granted  for  the 
purpose  of  taking  the  testimony  in  writing.  Nothing  in 
this  chapter  will  prevent  a  party  from  suing  for  trespass 
or  from  testing  the  right  of  property  in  any  other  man- 
ner.23 

§  1419.  "When  action  barred,  etc. — Thirty  days' 
peaceable  possession  with  the  knowledge  of  the  plaintiff 
after  the  cause  of  action  accrues  is  a  bar  to  this  proceed- 
ing.24 This  action  cannot  be  brought  in  connection  with 
any  other,  nor  can  it  be  made  the  subject  of  counter 
claim.25 

§  1420.  Of  the  judgment.— If  the  defendant  is 
found  guilty,  judgment  will  be  entered  that  he  be  re- 
moved from  the  premises,  and  that  the  plaintiff  be  put  in 
possession  thereof,  and  an  execution  for  the  defend- 
ant's removal  will  issue  to  which  should  be  added  a 
clause  commanding  the  officer  to  collect  the  costs  as  in 
other  cases.26  Said  execution  may  be  in  the  following 
form : 

21  Code,  Sec.  4213.  24  Code,    Sec.    4217:     Heiple    v, 

22  Code,  Sec.  4214.  Reinhart,  69  N.  W.,  S71. 

23  Code,  Sec.  4216.  25  Code,  Sec.  4218. 

26  Code,  Sec.  4221. 


676  DETENTION  OF   PROPERTY.  [§  1420. 

FORM  OF  EXECUTION  FOR  REMOVAL  OF  DEFENDANT. 

State  of  Iowa, 
County. 

The  State  of  Iowa  to  the  sheriff  of county,  greeting: 

Whereas  by  the  judgment  of  the  district  (or  superior)  court  of 

county,  Iowa,  rendered  in  an  action  wherein was  plaintiff 

and was  defendant,  it  was  adjudged  that  the  plaintiff  was  entitled 

to  the  immediate  possession  of  the  following  described  premises  sit- 
uated in  said  county,  and  which  are  now  wrongfully  detained  by,  and  in 
the  possession  of  the  said  defendant,  to-wit:  (here  describe  the  prem- 
ises as  In  the  petition),  and  whereas  it  was  adjudged  and  determined 
by  said  court  that  the  said  defendant  be  removed  from  said  premises 
and  the  plaintiff  be  put  in  possession  thereof,  and  that  an  execution 
should  issue  accordingly,  and  that  plaintiff  have  and  recover  his  costs 
of  the  said  defendant,  which  were  taxed  at  the  sum  of dollars. 

Now,  therefore,  in  the  name  of  the  State  of  Iowa,  we  command 
you  to  remove  the  said  defendant  from  said  premises,  and  to  put  the 
plaintiff  in  possession  of  the  same  and  to  remove  from  said  premises 
all  persons  claiming  to  hold  the  same  or  any  part  thereof  under  or  by 
virtue  of  the  authority  or  permission  of  said  defendant. 

And  you  are  further  commanded  and  required  to  make  the  amount 

of  said  judgment  for  costs,  to-wit:  the  sum  of dollars,  together 

with  all  accrued  costs  of  the  goods  and  chattels  of  the  said  defendant 
(except  such  as  are  by  law  exempt  from  execution)  by  levy  and  sale 
thereof  according  to  law. 

And  of  this  writ  make  due  service  and  return. 

Witness  my  hand  and  the  seal  of  said  court  this  day  of 

,  18—. 


[Seal.] 


Clerk  of  the  district  court  of county,  Iowa. 


INDEX. 


THE  REFERENCES  ARE  TO  THE  SECTIONS. 
VOL.  I.,  SECTIONS  1  TO  770.    VOL.  II.,  SECTIONS  771  TO  1420. 

ABANDONMENT— 

of  homestead,  effect  of,  1069. 

of  family  by  husband,  wife  may  defend  action,  71. 

of  attachment  by  officer,  743. 

See  Appeals. 
ABATEMENT— 

when  action  will  not  abate,  10,  94,  95,  96. 

of  action,  when  another  action  pending  between  same  parties,  281. 

matter  in,  when  may  be  pleaded  in  answer,  281. 
must  be  specially  pleaded,  281. 

judgment  on  matter  in,  632. 

of  nuisance,  1170  to  1173. 

form  of  order  for,  1174. 
ABOLITION— 

of  forms  of  action,  4. 

ABSCONDING — See  Attachment;   see  Exemptions. 
ABSENCE— 

of  evidence,  application  for  continuance  on  ground  of,  481. 

form  of,  and  affidavit,  489. 

of  a  party,  ground  for  continuance,  489. 

of  attorney,  ground  for  continuance,  483. 

of  judges  of  the  supreme  court,  proceedings  in  case  of,  20. 

of  the  district  court,  proceedings  in  case  of,  27. 
ABSOLUTE— 

sale  when;    see  Redemption;    see  Sheriff's  Sale. 
ABSTRACT— 

of  record  in  supreme  court,  must  be  made  and  printed,  1333,  1336, 
1338  to  1340;    1386. 

See  Action  of  Right;  see  Partition;  see  Appeals. 
ACCEPTANCE— 

of  service  of  notice  to  take  depositions,  375. 

by  referee  of  appointment,  582. 
ACCIDENT— 

new  trial  on  ground  of,  611. 
ACCORD  AND  SATISFACTION— 

how  pleaded;    see  Answer. 
ACCOUNT— 

limitation  of  actions  in  cases  of,  154. 

claim  of  public  officer  for  compensation,  is  not  an  account,  15*. 

actions  on  must  set  out  copy  of  account,  234. 

677 


678  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ACCOUNT  (continued)— 

form  of  petition  for  goods  sold  and  delivered,  250. 

on   account  stated,   250. 

on  account  for  services,  250. 

failure  to  set  out  copy  of  sued  on  ground  of  demurrer,  270. 
barred,  no  ground  for  excluding  books  of,  450. 
when  taken  as  true,  451. 
mortgage  of,  956. 

See  Account  Books. 
ACCOUNT  BOOKS— 

when  receivable  in  evidence,  442  to  447. 
explaining,  449. 
referring  to,  448. 

ACCOUNTING— See  Partnership, 
ACCOUNT  STATED— 

form  of  petition  on,  250. 
ACKNOWLEDGMENT— 

to  submission  to  arbitration,  form  of,  913. 
of  service;  see  Acceptance;  see  Service. 

of  satisfaction;  see  Mechanics'  Liens  and  Claims;  Mortgages. 
ACTIONS— 

civil  definition  of,  1,  2. 
what  they  inc'ude,  2,  3. 
form  of,  2,  206. 

technical  abolished,  4,  206. 
when  by  ordinary  proceedings,  5. 

equitable  proceedings,   5,  6. 
of  concurrent  jurisdiction,  8. 
error  in  form  of  proceedings,  effect  of,  10. 

how  remedied,  11. 

when  objection  waived,  12. 
of  ordering  change  in  the  proceedings,  15. 
uniformity  of  proceedings,  16. 
brought  by  real  party  in  interest,  54. 
beneficial  party  may  bring,  54. 
one  having  legal  title  may  sue,  54. 
indorsee  of  commercial  paper  may  sue,  55. 
assignees  may  bring,  58,  59. 
by  partners,  61. 

by  executors,  administrators  and  guardians,  62. 
by  foreign  administrators,  63. 
by  trustees,  64. 

by  person  for  whose  benefit  a  contract  is  maae,  65. 
by  persons  authorized  by  statute  to  sue,  67. 
of  suits  by  one  or  more  for  all,  68. 
by  corporations,  69. 
by  married  women,  70. 
by  parents,  71. 
by  minors,  72. 
by  insane  persons,  73. 
of  joinder  of  plaintiffs,  74,  75,  76,  77. 
of  defendants  in,  parties  having  adverse  interest,  78. 

in  actions  against  married  women,   79. 

against  partners,  80. 

in  foreclosure  cases,  81,  1145. 

against  minors,   82. 

against  insane  persons,  83. 

against  unknown  defendants,  84. 


INDEX.  G  ]  9 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 


ACTIONS   (continued)— 

in  cases  for  sale  of  intoxicating  liquor,  86. 
joinder  of,  85. 

in  case  of  sale  of  intoxicating  liquor,  80. 
in  actions  ex  delicto,  87. 
in  actions  for  conversion,  88. 
effect  of  release  of  joiut  wrongdoer,  89. 
when  new  parties  will  be  made,  90. 
substitution  of  parties  in,  91,  95. 

in  actions  against  sheriffs,  92,  93. 
will  not  abate  by  death  of  party  or  transfer  of  his  interest,  10, 

94,  96.      . 

form  of  notice  to  executor  to  revive  action,  96. 
in  case  of  landlord's  attachment,  97. 
venue  of,  98  to  111. 

change  of,  in,  112  to  135. 

what  is  commencement  of,  as  to  limitations,  161. 
commenced  by  service  of  original  notice,  its  form  and  requisites, 
167  to  170,  187  to  190. 
See  Limitation  of  Actions;  see  Original  Notice;  see  Cause  of 

Actions;  see  Joinder  of  Actions, 
of  consolidation  of  actions,  203. 

effect  of  consolidation  by  agreement,  203. 

See  Petition;   see  Pleadings, 
on  bonds,  66. 
—  on  notes  and  bills,  231. 

it  must  appear  that  plaintiff  has  a  right  to  sue,  232. 
on  written  contracts,  copy  of  contract  must  be  set  out,  233. 
on  accounts,  copy  of  account  must  be  set  out,  234. 
for  torts,  235. 
for  slander  and  libel,  236. 
no  jurisdiction  of,  raised  by  demurrer,  259. 
trial  of  equitable,  to  court,  574,  575,  576,  577,  578. 
trial  of,  to  court  when  jury  waived,  574. 
by  agreement,  574. 
practice,  578. 

trial  of,  to  referees,  579  to  587. 
by  several   plaintiffs,    or   against   several   defendants,   judgment 

when  defendants  not  all  served,  633. 
dismissal  of,  648. 

form  of  judgment  of,  648. 

for  damages  for  wrongful  suing  out  of  attachment,  744. 
when  brought  on  bond,  744. 
when  brought  independent  of,  744. 
on  bond  originally,  745. 

by  way  of  counter  claim,  745. 
form  of,  745. 
See  Attachments. 

when  cause  of  on  attachment  bond  accrues,  750. 
by  equitable  proceedings  to  subject  property  to  the  satisfaction  of 
a  judgment,  846. 

form  of  petition  in  case  of,  847. 
See  Actions  of  Right, 
on  bonds  of  public  officers,  870. 
when  they  lie,  871. 

may  be  several  on  the  same  security,  872. 
extent  of  liability  of  sureties  on,  873. 
to  recover  fines  and  forfeitures.  875  to  879. 
against  railway  companies  for  damages  from  fire,  880  to  886. 


C80  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ACTIONS   (continued)— 

former  statutes,  holdings  of  courts  under,  880. 
liability  of  under  present  statute,  881. 
for  damages  to  stock,  887  to  891. 

See  Railroads;    see  Stock;    see  Replevin  and  Detinue. 
on  an  award,  or  bond  to  abide  it,  919. 
for  writ  of  certiorari,  when  will  lie,  945,  946. 
to  recover  mortgaged  personal  property,  967. 
in  habeas  corpus,  1031  to  1050. 
in  injunctions,  1070  to  1091,  1097. 

on  the  bond,  1085. 
for  change  of  name,  1004. 
for  divorce,  1016  to  1025. 
to  annul  marriages,  1028,  1029. 
against  tenants,  1097. 
against   third    persons    to   recover   for    property   sold    them    by 

tenants,  1098. 

of  mandamus,  1107  to  1117. 
to  enforce  mechanics'  liens,  1118  to  1143. 
to  foreclose  mortgages  on  real  estate,  1144  to  1161. 
to  foreclose  title  bonds,  1144,  1161. 
of  nuisance,  1167  to  1174. 
of  partition,  1175  to  1207. 
of  quo  warranto,  1224  to  1231. 
receiver  appointed  in  any  civil,  1234. 
of  trespass,  1303  to  1307. 
of  waste,  1308  to  1312. 
of  forcible  enlry  and  detainer,  1412  to  1420. 

See  Intervention. 

ACTIONS  FOR  THE  RECOVERY  OF  SPECIFIC  PERSONAL  PROP- 
ERTY—See  Replevin  and  Detinue. 
ACTION  OF  RIGHT— 
when  it  lies,  851. 
to  quiet  title,  when  it  lies,  852. 
parties  to  the  action,  853. 

to  recover  real  property,  no  joinder  with,  854. 
proceedings  in  to  quiet  title,  855. 

of  service  of  notice,  856. 
petition  in  an  action  of  right,  857., 

form  of,  857. 
answer  in,  858. 

bond  in  for  payment  of  rent,  form  of,  858. 
practice  in,  859. 
verdict  in,  what  must  state,  860 
judgment  in,  requisites  of,  861. 
limitation  of  recovery  for  use  and  occupation,  862. 
tenants  in  possession,  liability  of,  863. 
notice  in  actions  to  quiet  title,  form  of,  864. 

petition  in  actions  to,  865. 

form  of,  865. 

of  disclaimer  and  costs,  866. 

attorneys'  foes,  866. 
new  trials  in.  867. 

appeals  from  order  granting,  86S. 
constructive  notice,  869. 
ACTS— 

parts  of,  whole  may  be  inquired  into,  526. 


INDEX.  681 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ADDITIONAL  SECURITY— 

for  costs  when  required,  698. 

when  required  in  attachment  cases,  725,  723. 

when  requir'ed  of  referees  in  partition,  1198. 
ADJOURNMENT— 

of  supreme  court,  20,  1382. 

of  district  court,  27,  28. 

of  cause  after  trial  is  commenced,  559. 

of  taking  depositions,  385. 

of  sheriff's  sale,  1280. 

See  Supreme  Court;    see  District  Court;    see  Terms  of  Court. 
ADJUDICATION— 

of  claim  of  sub-contractors  for  lien  on  public  buildings  and  im- 
provements, 1120. 
ADMINISTRATION— See  Executor  and  Administrator. 

ADMISSION— 

when  bar  of  statute  of  limitations  removed  by,  160. 

in  a  demurrer,  266. 

of  persons  as  attorneys,  920,  921. 

of  facts  stated  in  pleading  if  not  denied,  206. 

of  signature,  unless  denied  under  oath,  291. 
ADOPTION— 

of  rules  by  Supreme  Court,  1379. 
ADULTERY— 

a  ground  for  divorce,  1010. 
ADVANCING  CAUSES— 

when  will  be  advanced,  1385,  1404. 
ADVERSE  INTEREST— See  Parties. 

possession,  149. 
ADVERTISEMENTS— 

of  sheriff's  sale,  1277. 
ADVICE— 

judges  can  not  give,  34. 
AFFIDAVITS— 

for  change  of  venue,  127,  128,  129. 

of  service  of  original  notice,  182. 

for  service  on  Sunday,  184. 

for  service  of  notice  by  publication,  189. 

of  publication,  190,  192. 

to  pleadings,  332  to  335. 
form  of,  336 

what  is,  430. 

effect  of  when  taken  out  of  the  State,  431. 

when  party  compelled  to  make,  432. 
what  facts  may  be  proved  by,  432. 

notice  of  taking  may  be  required,  433. 

cross-examination,  when  permitted,  433. 

publication,  posting  notices,  etc.,  435. 

interrogatories  to  pleadings  sustained  by,  469. 
answers  must  be  supported  by,  467. 

for  continuance,  form  of,  489. 

of  jurors  to  impeach  verdict,  609. 
to  sustain  verdict,  609. 

to  accompany  submission  of  controversy,  677. 
form  of,  677. 

to  accompany  motion  for  security  for  costs,  form  of,  697. 
form  of  counter,  697. 


682  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

AFFIDAVITS  (continued)— 

in  attachment,  that  property  is  exempt,  724. 
attached  to  notice  of  ownership,  739. 
form  of,  739. 

in  attachment  for  debts  due  the  State,  760. 
form  of,  760. 

for  sale  of  perishable  property  in  attachment  suits,  763. 

and  showing  of  garnishee  to  set  aside  default,  780. 

form  of  for  issuance  of  execution  on  Sunday,  795. 

form  of  for  order  for  examination  of  judgment  debtor  before 
return  of  execution,  836. 

of  killing  of  stock  by  railroad,  887. 
form  of,  887. 
requisites  of,  892. 

of  concealment  in  replevin  cases,  903. 

of  posting  notice  of  sale  of  mortgaged  chattels,  977. 
form  of,  977. 

form  of  affidavit  of  officer  conducting  a  chattel  mortgage  sale,  980. 

form  of,  to  petition  for  landlord's  attachment,  1103. 

form  of,  to  statement  for  mechanic's  lien,  1130. 

of  death  of  defendant,  in  proceedings  to  revive  judgments,  1273. 

of  sureties,  727,  802. 
AFFINITY— 

of  judge,  disqualifies,  34. 

when  ground  for  change  of  venue,  118. 
AFFIRMATION— See  Oath. 

AFFIRMATIVE  RELIEF— See  Answer;    see  Pleading. 
AGENT— 

when  may  sue  in  his  own  name,  64. 

of  a  corporation,  how  served  with  original  notice,  175. 

employed  in  an  office  or  agency,  how  served  with  notice,  176. 

when  may  verify  pleadings,  335. 

form  of,  335. 
AGREED  CASE— 

how  and  when  submitted,  675,  676,  677. 

form  of  submission,  677. 

form  of  affidavit  to  same,  677. 
AGREEMENT— 

for  change  of  venue,  120. 

depositions  taken  on,  378. 

form  of,  378. 

judgment  on,  641. 

of  mortgagor  and  mortgagee  to  a  chattel  mortgage  as  to  time  of 
sale,  964. 

not  to  record  mortgage,  effect  of,  959. 

ALIMONY — See  Divorce,  Alimony  and  Annulling  Marriages. 
ALLEGATIONS— 

pleadings  are,  204. 

material  matter  only  should  be  alleged,  205,  208. 

facts  only  should  be  alleged,  208. 

evidence  should  not  be  alleged,  209, 

of  inducement,  proper,  209 

of  legal  conclusions  and  presumptions,  bad,  210. 

of  injuries  to  personal  property,  212. 

of  a  particular  estate,  when  proper,  212. 

of  payment,  214,  298. 


INDEX.  683 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

'ALLEGATIONS  (continued)— 

of  breach  of  covenant  of  warranty,  215. 
of  warranty,  215. 

of  an  estoppel,  216,  298. 

of  pleading  when  taken  as  true,  256. 

of  consideration,  when  not  necessary,  210. 

of  kind  and  species  of  property,  212,  241. 

of  ownership  and  title,  214. 

of  special  damage,  235. 

of  malice  when  necessary,  236,  241. 

of  a  statute,  237. 

of  performance  of  condition  precedent,  239. 

of  representative  capacity,  how  made,  240. 

of  a  conveyance  in  pleading,  241. 

of  breaches  in  condition  of  a  bond,  241. 

of  non-payment  of  damages,  241. 

of  breach  of  contract  generally,  241. 

See  Pleading;    see  Petition;    see  Answer. 
ALLOWANCE— 

of  attachment  in  cases  of  tort,  717. 

of  specific  attachment  when  made,  752  to  756. 

of  writ  of  certiorari,  by  whom,  948. 

See  Attachment;    see  Injunctions;    see  Amendments;    see  Di- 
vorce, Alimony  and  Annulling  Marriages. 
ALTERNATIVE— 

denials  bad,  288. 
AMBASSADORS— 

State  courts  no  jurisdiction  of,  259. 
AMENDMENTS— 

of  petition  as  affecting  statute  of  limitations,  162. 

of  petition  before  answer,  340. 
of  notice  of,  340. 

after  answer  in  discretion  of  the  court,  341,  343. 

rule  is  to  allow,  341. 

court  may  impose  terms,  341. 

a  demurrer  may  be  amended,  3*1. 

when  not  permitted,  342. 

in  attachment  cases,  343,  723,  7G9. 

in  injunction  cases,  344,  1091. 

in  cases  of  variance  between  pleadings  and  proof,  345. 

after  appeal  and  trial  by  the  supreme  court,  346. 

on  appeal  from  justices,  347. 

terms  of  allowing,  348. 

only  proper  to  correct  an  original  pleading,  349. 

supplemental  pleadings  when  allowed,  349. 

filed  without  leave  stricken  from  the  files,  350. 

continuance  on  account  of,  350. 

errors  not  affecting  substantial  rights  will  be  disregarded,  351. 

manner  of  making,  352. 

construction  and  effect  of  amendments,  352. 

prayer  for  relief  in  original  petition  applies  to  an  amendment,  352. 

court  may  permit  without  verification,  352. 

of  records  made  by  order  of  court.  353,  624. 

of  statutes,  354. 

of  bonds  and  original  notices,  355. 

of  substituting  pleadings,  356. 

of  application  for  continuance,  4SC. 


G84  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1425. 

AMICABLE  ACTION— See  Agreed  Case. 

AMOUNT  IN  CONTROVERSY— See  Supreme  Court. 

no  appeal  when  less  than  one  hundred  dollars,  22,  1317,  1381. 
See  Appeals. 

ANNULLING  MARRIAGES— See  Divorce,  Alimony  and  Annulling  Mar- 
riages. 

ANIMALS— See  Stock. 
ANOTHER  ACTION  PENDING— 

when  ground  for  a  demurrer,  262. 
ANSWER— 

is  a  pleading,  208. 

members  of  general  assembly  excused  from,  whsn,  255. 

no  persons  need  on  certain  holidays,  255. 

when  must  be  filed,  279. 

what  it  must  contain,  280. 

forms  of  captions  to,  280. 

matter  in  abatement  may  be  stated  in,  281. 

of  the  general  denial,  282. 

what  it  must  consist  of,  282. 

form  of,  282. 

it  puts  in  issue,  283. 

what  may  be  proved  under,  283. 
by  guardians,  284. 

form  of,  284. 

what  it  must  contain,  284. 
denying  knowledge  or  information,  2S5. 

form  and  effect  of,  285. 
specific  denials  in,  286. 
partial  denials  in,  287. 
alternative  denials  in,  288. 

how  allegations  of  time,  place,  sum  and  quantity  denied  in,  289. 
where  judgment  is  pleaded,  denials  in,  290. 
when  performance  of  condition  precedent  is  pleaded,  denials  in, 

290. 

of  denials  when  plaintiff  sues  as  a  corporation,  partnership,  execu- 
tor, etc.,  290. 
signature  to  written  instruments,  how  denied,  291. 

must  be  by  one  whose  signature  it  purports  to  be,  292. 

what  is  a  sufficient  denial  in  such  cases,  293. 
of  the  burden  of  proof,  294. 
when  written  instrument  deemed  genuine,  294. 
form  of  specific  denial  in,  295. 

of  answer  denying  signature,  *j»6. 
new  matter  in,  how  pleaded,  297. 
matters  which  must  be  specially  pleaded,  298. 

when  payment  must  be  thus  pleaded,  298. 
when  matter  in  mitigation  must  be  specially  pleaded  in,  291). 
inconsistent  defenses  may  be  pleaded  in,  300. 
effect  of  plea  in  confession  and  avoidance,  300. 
pleading  new  matter  constituting  counter  claim,  301. 
what  is  a  counter  claim,  302. 

when  new  party  necessary  to  determine,  303. 
Of  counter  claim  in  case  of  co-maker  of  surety.  304. 

of  the  judgment  when  counter  claim  is  barred,  305. 


INDEX.  685 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ANSWER  (continued)— 

effect  of  failure  to  plead  counter  claim  in,  306. 

dismissal  of  action  does  not  affect  counter  claim  then  pleaded,  306. 

cross-petition  in,  307. 

when  notice  required,  307. 
pleading  defenses  jointly  in,  308. 

equitable  defenses,  309. 
counter  claim,  309. 

affirmative  defenses  stated  in  a  distinct  division,  310. 
when  answer  demurrable,  311. 
when  matter  is  stricken  out  on  motion,  311. 

facts  constituting  a  partial  defense  must  not  be  pleaded  as  a  com- 
plete defense,  311. 

defense  part  of  does  not  need  prayer  for  judgment,  312. 
form  of  answer  pleading  new  matter,  313. 

pleading  statute  of  limitations,  313. 

pleading  inconsistent  defenses,  313. 

pleading  tender,  313. 

pleading  usury,  313. 

pleading  non-joinder  of  plaintiffs,  313. 

pleading  account  stated,  313. 

pleading  breach  of  warranty,  313. 

pleading  to  action  on  an  insurance  policy,  313. 

to  a  petition  on  a  policy  of  insurance,  313. 
demurrer  to  defense  part  of,  314,  315. 

grounds  of,  315. 

allegations  of,  when  deemed  denied,  319. 
to  rule  to  produce  books  and  papers,  425. 

form  of,  425. 

to  interrogatories  to  pleadings,  time  of,  466. 
compelled  to,  470. 
and  counter  claim  on  attachment  bond,  745. 

form  of,  745. 

of  garnishee,  when  and  how  controverted,  785. 
of  defendants  in  proceedings  in  equity  supplemental  to  execution, 
848. 

must  be  under  oath,  848. 

effect  of  failing  to  answer,  848. 
in  an  action  of  right,  858. 
to  the  writ  in  habeas  corpus  case,  1046. 

form  of,  1046. 

pleas  to  answer,  1047. 
requisites  of  in  partition,  1184. 

when  deemed  true  in,  1184. 

of  minors  in,  1185. 

form  of,  1185. 

See  Quo  Warranto;    see  Replevin  and  Detinue;     see  Man- 
damus;     see    Injunction;      see     Mechanic's    Liens     and 
Claims;    see  Pleading;    see  Practice. 
APPELLATE  PROCEEDINGS— See  Appeals. 
APPEALS— 

will  not  lie  from  an  order  changing  or  refusing  to  change  the 

venue,  115,  1314. 

from  ruling  on  demurrer,  effect  of,  278. 
amendments  after,  346. 

after  appeal  from  justice's  court,  347. 
depositions  on  trial  of,  from  a  justice  of  the  peace,  400. 


686  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

APPEALS  (continued)— 

bill  of  costs  on  must  accompany  record  to  supreme  court,  708. 
lie  from  final  judgment  in  action  of  right.  863. 

from  order  granting  a  new  trial  ia,  868. 

lie  from  an  order  appointing  or  refusing  to  appoint  a  receiver, 
1248. 

time  of  taking,  1313. 
what  it  brings  up  for  review,  1313. 
when  an  appeal  lies  generally,  1203,  1314,  1383. 
when  an  appeal  will  not  lie,  1315,  1001. 
what  is  a  waiver  of  the  right  to  appeal,  1313. 
amount  in  controversy,  how  determined,  1317,  1383. 

form  and  requisites  of  the  certificate,  1318,  1383. 

time  of  making  certificate,  1319,  1383. 
questions  involving  an  interest  in  real  estate,  1320,  1383. 
cf  notice  of  appeal,  1321,  1383. 

form  of,  1321. 

service  of,  1322,  1383. 

when  perfected,  1322,  1383. 

form  of  acceptance  of  service,  1322. 
filing  of  notice  of,  1323,  1383. 
waiving  irregularities,  1323. 
of  the  supersedeas  bond,  1324,  1387. 

form  of,  1324. 
of  the  supersedeas,  1325. 

form  of,  1325. 

form  of  the  countermand,  1325. 
who  may  appeal,  1326. 

transcript,  when  necessary,  what  it  must  contain,  1327,  1396. 
record,  when  and  how  certified,  1327,  1386. 
denials  of  transcript,  etc.,  1328,  1386. 
what  deemed  a  part  of  the  record,  1329. 
when  the  evidence  must  be  certified,  1329. 

forms  of  certificate,  1329. 
transcript,  form  of,  1330,  1396. 

form  of  certificate  to,  1330. 
of  corrections  of  the  record,  1331. 
inspection  of  original  papers,  1332,  1386. 
the  abstract,  its  form  and  requisites,  1333,  1386,  1396. 
of  taxing  costs,  1333,  1401. 

s  when  the  appeal  will  be  dismissed,  or  the  judgment  affirmed   1335, 
>^      1386,  1388. 

when  the  abstract  will  be  deemed  true,  1336,  1386. 

when  the  abstract  may  be  attacked  by  motion,  1337,  1386. 

of  the  filing  and  service  of  amended  and  additional  abstracts  1338 

1386. 

when  the  abstract  must  contain  all  the  evidence,  or  all  the  in- 
structions. 1339. 

what  is  sufficient  to  show  that  abstract  contains  all  of  the  evi- 
dence, 1340. 
When  an  assignment  of  errors  is  necessary,  1341,  1388,  1396. 

sufficiency  of  the  assignment.  1342. 

service  and  filing  of  the  assignment,  1343,  1388. 

form  of  the  assignment,  1344,  1388. 
of  the  argument,  1345,  1390,  1405. 
of  the  submission  of  causes,  1406. 

of  setting  aside  the  submission,  1407. 
of  the  duty  of  the  clerk,  1346,  1384,  1389,  1399,  1400,  1401. 


INDEX.  087 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

APPEALS  (continued) — 

of  motions,  1347,  1389. 

when  filed  and  heard,  1347. 

affirmance  of  cases,  1348,  1388,  1391,  1393,  1394. 

rendering  judgment  on  appeal  bond,  1348,  1393. 

reversal  of  cases,  1349,  1391. 

effect  of  judgment  in  supreme  court,  1350. 

remitting  part  of  judgment,  1350. 

effect  of  a  prior  decision  on  a  second  appeal,  1351. 

proceedings  in  lower  court  after  a  cause  is  reversed  and  remanded, 
1352,  1394. 

power  of  supreme  court,  executions  therefrom,  1353,  1394. 
restoration  of  property,  1353,  1394. 

of  restraining  orders,  1408. 

opinions  of  supreme  court,  and  rules,  1354,  1379  to  1402. 
rules  regulating  in  criminal  cases,  1397. 

when  no  motion  for  a  new  trial  need  be  made  in  lower  court,  1355. 

lien  of  the  judgment  of  the  supreme  court,  1356. 

procedendo,  form  and  requisites  of,  1357,  1393. 

decrees  in  the  supreme  court,  1357,  1393,  1394. 

of  withdrawing  papers  from  the  files,  1357,  1400. 

when  causes  will  be  tried  de  novo,  1358. 

regulations  as  to  method  of  trial,  1359. 

what  must  appear  of  record  to  warrant  a  trial  de  novo,  13GO. 

the  judge's  certificate,  its  requisites,  when  it  must  be  filed,  1361. 

the  clerk's  certificate,  1362. 

hearing  and  determination  of  appeals  in  equitable  actions,  1363. 

questions  as  to  the  admissibility  of  evidence  on  trial  de  novo,  1364. 

when  the  case  will  be  remanded,  1365. 

of  the  decree  in  a  case  tried  de  novo,  1366,  1393. 

proceedings  in  lower  court  in  an  equitable  action  after  it  is  re- 
manded, 1367. 

questions  not  raised  in  lower  court,  not  considered  on  appeal,  1368. 

presumptions  of  regularity  of  proceedings  of  the  court   below, 
1369,  1370. 

what  is  error  without  prejudice,  1371. 

when  rulings  upon  a  demurrer,  or  with  reference  to  pleadings 
will  be  without  prejudice,  1372. 

error  without  prejudice  in  ruling  upon  evidence,  1373. 

error  without  prejudice  in  giving  of  instructions,  1374. 

discretion  of  the  lower  court,  1375. 

petition  for  re-hearing,  requisites  of,  1376,  1395. 
service  of,  1376,  1377. 
argument  on  same,  1377,  1395. 

action  of  the  court  on  petition  for  rehearing,  1378,  1395. 
APPEARANCE— 

of  defendant  to  suit  when  must  be  made,  172,  253,  256. 

mode  of,  253. 

effect  of,  253. 

default  without  notice  will  not  be  cured  by  moving  to  set  it  aside, 
253. 

unauthorized  may  be  ratified,  253. 

members  of  general  assembly  need  not  appear  during  its  sessions, 
255. 

no  one  compelled  to  appear  on  certain  holidays,  255. 

failing  to  make  answer,  allegations  of  petition  deemed  true,  256. 

acts  of  defendant  after  appearance,  256,  257. 

trial  jurors  when,  497. 

bond  for  of  defendant  in  injunction  case,  1090. 


688  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Se          3  771  to  1420. 

APPEARANCE  (continued)— 

of  defendant  in  forcible  entry  and  detainer  case,  1417. 

See  Supreme  Court;    see  District  Court. 
APPEARANCE  DOCKET— 

memorandum  of  filing  petition  must  be  made  in,  252. 
APPELLANT— See  Appeal. 
APPELLEE— See  Appeal. 
APPLICATION— 

for  new  trial,  when  must  be  made,  622. 
when  supported  by  affidavits,  623. 
when  without  affidavits,  624. 
for  security  for  costs;    see  Costs. 
for  appointment  of  receiver,  1236. 
for  order  on  clerk  to  certify  record,  1327. 
form  of,  1327. 
APPOINTMENT— 

of  referees  in  partition,  1190. 

form  of,  1190. 

of  referee  in  partition  to  ascertain  and  report  incumbrances,  1188. 

of  receiver,  1233  to  1237. 

form  of,  1243. 

of  guardians  ad  litem,  82,  83,  1185. 
of  referees  to  try  causes,  581. 

form  of,  581. 

of  trustees  in  proceedings  to  dissolve  corporations,  1230. 
of  appraisers  in  attachment  cases,  741. 
of  referees  to  settle  homestead,  on  execution,  1063,  1034. 
of  appraisers  by  sheriff  on  execution,  1294. 
of  deputy  clerk  of  the  district  court,  43. 
APPORTIONMENT- 

of  costs,  when  should  be  made,  703. 
APPRAISERS— 

form  of  notice  to  choose  in  replevin  cases,  904. 
in  attachment  cases,  741. 
form  of  oath  of,  741. 

in  case  of  sale  of  property  on  execution,  1291. 
form  of  appointment,  1294. 
form  of  oath  of,  1294. 
form  of  appraisement,  1294. 
form  of  notice  to  choose,  1294. 
APPRAISEMENT— 

form  of  in  replevin,  904. 

form  of  oath  to,  904. 

of  attached  property,  741. 

of  personal  property  on  execution,  1294. 

See  Appraisers. 
APPROVAL— 

of  bonds  and  sureties,  forms  of,  739,  740,  741,  1105,  1243. 
of  conveyances  made  by  a  commissioner,  694. 
ARBITRATION— 

what  may  be  submitted,  912,  913. 
when  the  submission  may  be  made,  912. 
requisites  of,  913. 
form  of,  913. 

form  of  acknowledgment  to,  913. 
of  the  award,  915. 


INDEX.  G89 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ARBITRATION  (continued)— 
form  of,  915. 

proceedings  on  an  award  in  court,  916. 
cause  may  be  re-committed,  916. 
may  be  set  aside,  when,  916. 

of  bonds  to  abide  award,  917. 
form  of,  917. 

common  law  submissions  and  awards,  918. 

action  on  the  award  or  bond,  919. 

form  of  petition  on  award,  919. 

See  Arbitrators. 
ARBITRATORS— 

powers  of,  914. 

form  of  notice  of  hearing  by,  914. 

See  Arbitration. 
ARGUMENT— 

of  demurrer,  275. 

absence  of  judge  during,  507. 

of  questions  of  law,  527. 

of  cause,  order  of,  535,  537. 

limiting  to  court,  537. 

misconduct  of  attorneys  in,  538. 

on  appeal  in  supreme  court,  1345,  1390. 

must  be  printed  and  served,  1345. 

limitation  of.  1345,  1390,  1405. 

when  oral  permitted,  1345,  1390,  1405. 
ARREST— 

of  defendant  in  habeas  corpus  proceedings,  1037  to  1045. 

of  defendant  in  auxiliary  proceedings,  842. 
ARREST  OF  JUDGMENT— 

what  is  ground  for,  264. 
ASSAULT— 

form  of  petition  for  damages  by,  250. 
ASSESSMENT— 

of  damages  by  jury,  571. 

generally,  655. 

in  cases  of  defaults,  654. 

error  in,  ground  for  new  trial,  613. 
ASSIGNABLE— 

what  is,  56,  60. 
ASSIGNEE— 

may  sue  in  his  own  name,  54,  59,  60,  68. 

defenses  against,  56. 

may  sue  on  verbal  assignment,  58. 

may  redeem,  1266. 

for  the  benefit  of  creditors,  929  to  941. 
ASSIGNMENT— 

no  particular  form  required,  57. 

of  verbal  assignments,  58. 

of  written  assignments,  59. 

for  benefit  of  creditors,  assignee  may  sue,  68. 

of  foreign  judgment,  effect  of,  416. 

of  judgment  may  be  set  aside  by  court,  646. 

to  junior  incumbrancers,  when  made,  1151. 

of  right  to  redeem,  1266. 
See  Assignment  of  Errors. 
Vol.  II.— 44. 


690  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ASSIGNMENT  OF  ERRORS— 

when  necessary,  1341,  1388. 
sufficiency  of,  1342,  1388. 
service  and  filing  of,  1343,  1388. 
form  of,  1344,  1388. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS— 
valid  as  general,  923. 
valid  as  partial,  924. 

assignments  embraced  in  several  instruments,  925. 
defective  assignments,  926. 
of  insolvency,  927. 
of  assignments  of  partners,  928. 
of  the  inventory,  929. 
property  passed  by,   930. 
rights  of  assignee,  931. 
assignee's  duty,  932. 
of  the  notice,  933. 
of  filing  claims,  934. 
claims  filed  after  the  three  months,  935. 
of  the  assignee's  report,  936. 
of  contesting  claims,  937. 
of  priority  of  taxes,  938. 
preferred  claims,  939. 
dividends,  940. 
of  settlement,  941. 
sale  of  the  property,  942. 
removal  of  assignee,  943. 
death  or  misconduct  of  the  assignee,  944. 
ASSOCIATIONS— 

Unincorporated,  how  may  sue,  64,  68. 
ATTACHMENT— 

claim  on  bond  given  for,  is  assignable,  56. 

defendants,  in  action  for  specific  property  taken   on   landlord's 

attachment,  97. 

venue  in  action,  aided  by,  102. 
amendments  in  cases  of,  343,  723. 
when  it  will  issue,  712. 

proceedings  in  are  auxiliary  to  main  case,  713. 
when  will  issue  on  Sunday,  714. 
requisites  of  the  petition  asking  an,  715. 
causes  for,  715. 

petition  must  state  amount  due,  716. 
causes  must  be  stated  in  conjunctive  form,  715. 
form  of  petition  in,  716. 
proceedings  when  demand  is  founded  on  a  tort,  717. 

allowance  by  judge  of  property  to  be  attached,  717. 

form  of  order  allowing  in  action  on  tort,  717. 
when  action  is  held  to  be  on  contract,  718. 

held  to  be  based  on  tort,  719. 
when  will  issue  for  debts  not  due,  720. 

pleadings  and  proceedings  in  such  cases,  721. 
petition  must  be  verified,  722. 

by  whom  may  be,  722. 
law  to  be  liberally  construed,  723. 
when  writ  will   be  quashed,   724. 
when  attachment  dissolved.  724. 

form  of  motion  to  discharge,  724. 

form  of  affidavit  of  exemption  of  property,  724. 


INDEX.  G91 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ATTACHMENT    (continued)— 
bond,   requisites  of,  725. 

when  further  security  required,  725,  726. 

form  of  bond,  725. 

qualification  of  sureties  on,  727. 

form  of  justification  by  sureties,  727. 

form  of  approval  of  bond  and  sureties,  727. 
writ  of,  when  it  will  issue,  728. 

form  of,  728. 

may  run  into  different  counties,  729. 

duty  of  officer  under,  730. 
levy,  requisites  of  to  be  valid,  731. 

of  attaching  stock,  etc.,  732. 

of  the  giving  of  notice,  733. 

of  lands,  734. 

partnership  property,  how  levied  on,  735. 

when  a  receiver  may  be  appointed,  735. 
examination   of   the   defendant,    736. 
lien  of  the,  737. 

priority  of,   738. 

as  between  attaching  creditors,  738. 
as  against  mortgagees,  738. 
release  of  property  when  indemnifying  bond  is  not  given,  739. 

notice  of  claim  of  ownership,  form  of,  739. 

form  of  oath  to  accompany   notice,   739. 

form  of  indemnifying  bond,  739. 

form  of  approval  of,  739. 

on  bond  to  perform  judgment  being  given,  740. 

form  of  such  bond,  740. 

form  of  approval  of,   740. 

on  giving  delivery  bond,  741. 

form  of  oath  of  appraisement,  741. 

appraisement  of  property,  741. 

form  of  delivery  bond,.  741. 

form  of  approval  of,  741. 

on  motion  of  third  party,  742. 

dissolution  of  on  judgment,  742. 

of  excessive  amount  by  order  of  court,  743. 
abandonment  of  property  by  officer,  743. 
actions  for  damages  for  wrongful  suing  out,  744. 

when  must  be  brought  on  the  bond,  744. 

when  may  be  brought  independent  of  it,  744. 

on  bond  originally,  745. 

by  way  of  counter  claim,  745. 

form  of  answer  and  counter  claim  on  bond,   745. 
damages,  actual  when  recovered,  746. 

what  are,  746. 

exemplary,  what  are,  748. 

when  may  be  recovered,  748. 

nominal,  what  are,  749. 

when  may  be  recovered,  749. 
attorney's  fees,  when  recoverable,  747. 

court  must  fix,  747. 
special  interrogatory  should  be  submitted  to  jury,  747. 

form  of,  747. 

when  cause  of  accrues,  750. 
pleading  and  practice  in,  751. 
specific  attachment,  when  granted,  752. 


692  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ATTACHMENT    (continued)— 

terms  and  conditions  of  753. 

writ  in  such  cases,  754. 

discharge  of  property  in  cases  of,  755. 

pleadings   in  cases  of,  756. 

form  of  order  allowing,  756. 
for  debts  due  the  State,  757. 

no  bonds  required  in  case  of,  758. 

damages  in  case  of,  759. 

pleadings  and  practice  in  such  cases,  7CO. 

affidavit  for  attachment  in  case  of,  760. 
divorce,  attachments  in  cases  of,  761,  1019. 
disposition  of  attached  property,  762. 

sale  of  perishable  property,  763. 

form  of  notice  to  defendant,  763. 

application  of  funds,  surplus,  etc.,   764. 

discharge  of  property  when  judgment  is  for  defendant,  765. 
expense  of  keeping  property,  766. 
intervention  by  third  party,  when  permitted,  767. 
return  of  officer,  768. 

form  of,  768. 

effect  of,  769. 

amending,  769. 

federal  courts,   conflict  between  State  and,  770. 
for  contempt;    see  Contempt, 
in  habeas  corpus  case,  1043. 

form  of,  1043. 
landlord's  form  of,  1104. 

levy  of,  1105. 

ATTACHMENT  BOND— See  Attachment. 

ATTACHED  PROPERTY— See  Attachment;    see  Garnishment. 
ATTORNEY,  COUNTY— See  County  Attorney. 
ATTORNEYS  AT  LAW— 

are  officers  of  the  court,  25. 

admission  to  the  bar  by  supreme  court,  22,  1402. 
license  of,  when  and  how  revoked,  22,  25. 
change  of  venue  for  undue  influence  of,  119. 
acceptance  of  service  by,  presumed  authorized,   173. 
may  verify  pleadings,  335. 

form  of  verification,  336. 

absence  of,  may  be  ground  for  continuance,  483. 
number  of  allowed  to  argue  case  to  jury,  537. 
limiting  argument  of,  537. 
misconduct  of  in  argument,   538. 

fees  of  in  suits  for  wrongful  issuance  of  attachment,  747. 
statutory  provisions  for  admission  of  persons  as,  920. 
rules  of  supreme  court  relating  to  admission  to  the  bar,  921,  1402. 
fees  in  case  of  foreclosure  of  real  estate  mortgage,  1149. 
fees  of  in  partition  cases,  1205. 

form  of  affidavit  for  taxing  fees  in  foreclosure  cases,  1149. 
fees  when  taxed,  709,  1401,  1410. 
of  the  affidavit,  710. 
opportunity  to  pay,  711. 
ATTORNEY  GENERAL— 

when  to  prosecute  actions,  67. 
AUCTION— 

sheriff's  sale  to  be  at;    see  Sheriff's  Sales. 


LNItEX.  69$ 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

AUTHENTICATION— 

of  depositions,  390. 

form  of,  390. 

form  of  to  record  of  court  in  Iowa  for  use  in  Iowa,  408. 

form  of  record  of  federal  courts  for  use  in  Iowa,  408. 

record  of  courts  of  another  State  for  use  in  Iowa,  409. 
of  probate  of  a  will,  418. 
of  public  record,  418. 

See  Certificate. 
AUXILIARY    PROCEEDINGS— 

when    an    order    for    the    examination    of    the    debtor    will    be 

granted,  835. 

form  of  petition  for  order,  835. 
when  order  may  be  granted  before  return  of  execution,  836. 

form  of  affidavit  for,  836. 

not  available  until  judgment  is  rendered,  836. 
additional  to  remedy  in  equity,  836. 
by  whom  and  when  the  orders  may  be  granted,  837. 

form  of,  837. 
examination  of  debtor,  838. 

power  of  court  or  officer  on  the,  839. 
disposal  of  equitable  interest  in  lands  by  receiver,  840. 
failing  to  obey  order,  or  make  answer  is  a  contempt,  841,  992. 
warrant  for  arrest,  when  will  issue,  842. 

debtor  may  give  bond,  843. 
effect  of  statute,  844. 
compensation  of  officers,  845. 
by  equitable  proceedings,  when,  846. 
form  of  petition  in,  847. 
of  the  answers,  848. 
of  the  lien,  849. 

enforcing  surrender  of  property,  850. 
See  Executions;     see  Contempts. 
AVERMENTS— See  Statement;    see  Allegation. 
AVOIDANCE — See  Confession  and  Avoidance. 
AWARD— See  Arbitration. 
BAILIFF— 

in  charge  of  trial  jury,  duties  of,  556. 
form  of  oath  of,  556. 
BELIEF— 

Information  and;    see  Pleadings;    see  Answer. 
BENEFICIAL  PARTY— See  Real  Party  in  Interest;    see  Parties. 
BILL— See  Creditor's  Bill. 
BILL  OF  EXCEPTIONS— 
when  necessary,  588. 

none  needed  in  an  equitable  action,  589. 
making  matter  of  record  without  a  bill,  589. 
matters  made  of  record  by  statute,   590. 
matters  of  record  and  not  of  record,  591. 
what  writings  must  be  made  part  of  the  record  by,  592. 
evidence  taken   in  shorthand  must  be  preserved  by,  593. 
reporter's  notes  must  be  certified  by  him,  593. 

may  be  amended,  593. 
instruments   of  evidence  must   be   incorporated   in   or   properly 

identified,  594. 

what  is  a  sufficient  identification.  594. 
of  skeleton  bills,  sufficiency  of,  595. 


694  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  77)  to  14zt). 

BILL  OF  EXCEPTIONS  (continued)— 
must  be  certified  by  judge,  596. 
must  be  filed  within  time  required,  596,  599. 
requisites  of  a,  597. 
of  signing,  598. 

how  obtained  when  judge  refuses  to  sign,  598. 
time  of  filing,  599. 
judge  may  make  and  file  a,  599. 
presumptions  with  reference  to,  599. 
can  not  be  contradicted,  600. 
testimony  of  witness  in  can  not  be  used  on  a  suDSwjwent  trial 

to  impeach  him,  600. 

exceptions  to  instructions,  how  and  when  taken,  601. 
manner  of  taking  to  instructions,  601. 
exceptions  must  go  to  a  material  point,  602. 
when  they  will  be  waived,   603. 
exceptions  to  ruling  on  demurrer  or  motion  in  equity  case  must 

be  taken,  603. 
form  of  the  bill,  604. 

See  Exceptions;     see  Appeals. 
BILLS  AND  NOTES— 

assignee  of  may  sue,  59. 
requisites  of  petition  on,  231. 

form  of  petition  on  notes,  250. 

form  of  petition  on  note  against  maker  and  indorser,  250. 
form  of  petition  on  note  payable  in  property,  250. 
form  petition  by  surviving  partner  on  note,   250. 
form  of  petition  by  indorser  who  has  paid  note,  250. 
BILL  OP  PARTICULARS— See  Copy. 
BILL  OF  REVIEW— 

not  authorized  by  statute,  1377. 
BILL  OF  SALE— 

form  of  by  sheriff  to  purchaser  on  foreclosure  of  chattel  mort- 
gage, 979. 

BONA  FIDE  PURCHASER— See  Sheriff's  Sale;    see  Appeals. 
BONDS— 

action  on,  by  whom  brought,  66. 

action  on,  for  breach  of  condition;    what  petition  must  state,  241. 

must  be  averred  that  damages  are  unpaid,  241. 
amendment  of,  355. 

form  of,  to  abide  order  of  court  in  case  of  service  by  publica- 
tion, 659. 
for  security  for  costs,  698. 

form  of,  698. 
See  Indemnifying  Bond. 

to  perform  judgment,  in  attachment  cases,  740. 
form  of,  740. 
form  of  approval  of,  740. 
See  Delivery  Bond, 
stay;    see  Executions, 
when   judgment   debtor   may   give   in   proceedings   auxiliary   to 

execution,  843. 
for  payment  of  rent,  in  an  action  of  right,  858. 

form  of,  858. 

action  on,  of  public  officers,  870  to  874. 
in  action  of  replevin,  901. 
form  of,  901. 


INDEX.  G95 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

BONDS   (continued) — 

form  of  to  abide  award  of  arbitrators,  917. 
injunction,  requisites  of,  1084. 

form  of,  1084. 

for  appearance  in  injunction  cases,  form  of,  1090. 
indemnifying  in  case  of  landlord's  attachment,  1105. 
form  of,  1105. 
form  of  approval  of,  1105. 

form  of  to  discharge  lien  of  sub-contractor,  1141. 
of  referees  In  partition,  when  sale  is  made,  1198. 

form  of,  1198. 
of  receiver,  1243. 
form  of,  1243. 
form  of  approval  of,  1243. 
supersedeas,  1324,  1387. 
form  of,  1324,  1387. 
attachment  bond;     see  Attachment, 
of  defendant  in  auxiliary  proceedings,  843. 

BOOKS  AND  PAPERS — See  Books  of  Account;    see  Evidence, 
production  of,  how  compelled,  421,  422. 
petition  for  order  for  production  of,  423. 
form  of,  423. 
of  the  rule,  424. 
answer  to  the  rule,  425. 
effect  of  failure  to  obey  the  rule,  426. 
using  them  in  evidence,  427. 
notice  to  produce,  428. 

form  of,  428. 

historical,   scientific,   etc.,   may  be  introduced   in  evidence,   417. 
referring  to  by  a  "witness,  448. 
explaining  by  witness,  449. 
BOOKS  OF   ACCOUNT— 

when  admitted  in  evidence,  442  to  451. 
BOOKS  OF  SCIENCE— 

admitted  in  evidence,  417. 
BREACHES— 

of  covenant,  how  pleaded,  215. 
of  warranty,  how  pleaded,  215. 

form  of  answer  pleading,  313. 
of  contracts,  how  pleaded,  241. 
of  conditions  of  a  bond,  how  pleaded,  241. 

See  Attachment. 
BREACH  OF  PROMISE  OF  MARRIAGE— 

form  of  petition,  250. 

BRIEFS — See  Arguments;  see  Supreme  Court. 
BUILDINGS— See  Mechanics'  Liens  and  Claims. 
BURDEN  OF  PROOF— 

as   to    non-residence,    157. 

party  having,  has  opening  and  closing  argument,  502. 
how  determined,  536. 

review  of  question  of,  in  supreme  court,  539. 
CALENDAR— 

to  be  arranged  and  kept  by  clerk  of  district  court,  475. 
to  furnish  court  and  bar  with  printed  copies,  475. 
garnishment  cases  to  be  placed  on,  791. 
of  causes  in  supreme  court  to  be  printed,  1346. 


696  IXDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CANCELATION— 

of  real  estate  contracts,  1157. 
CAPACITY— 

representative,  when  pleaded,  denial  of,  290. 
how  pleaded,  240. 

See  Pleading;    see  Petition;    see  Answer. 
CAPTION— See  Petition;    see  Answer. 

to  depositions  taken  on  notice,  381. 
taken  on  commission,  382. 
taken  on  agreement,  383. 
to  records  in  supreme  court,  form  of,  644. 
in  district  court,  644. 
form  of,  644. 
CARLISLE  TABLES— 

when  admissible  in   evidence,   417. 
CASTING   LOTS— 

for  verdict  by  jury,  vitiates  it,  608. 
CASUALTY— 

judgment  vacated  for  unavoidable,  1214. 
CATTLE— See  Stock. 
CAUSES— 

arrangement  of  by  clerk  on  calendar,  475,  1384,  1403. 
submission  of  in  supreme  court,  1406. 
setting  aside  submission  of,  1407. 
when  advanced,  1385,  1404. 
docketing  of  in  supreme  court,  1384. 
criminal,  rules  relating  to,   1397. 
when  triable,  473  to  476. 
order  of  trial  of,  474,  475. 
continuance  of,  how  obtained,  485,  486. 
forms  of  motion  for,  489. 
forms  of  affidavit  for,  489. 
as  to  defendants  not  served,  254. 
of  challenge  to  jurors;     see   Challenge;     see  Continuance;     see 

Appeals;    see  Supreme  Court. 
CAUSES  OF  ACTION— 
definition  of,  193. 
assignable,  55,  56. 

when  may  be  joined,  194,  197,  193. 
when  can  not  be  joined,  195,  19y. 
what  is  entire  cause  of  action,  196. 
striking  out,  200. 

form  of  motion  to,  200. 
when  misjoinder  of  waived,  201. 
when  separate  petitions  may  be  filed,  202. 
of  consolidation  of,  203. 
how  stated,  217  to  241,  244. 
each  must  be  stated  in  a  separate  counjt,  248. 
how  stated  in  an  equitable  action,  251. 
when  accrues  on  attachment  bond,  750. 

See  Limitation  of  Actions. 
CAVEAT  EMPTOR— See  Sheriff's  Sale. 
CERTIFICATE— 

to  deposition  taken  on  notice,  386. 
to  deposition  taken  on  commission,  387. 
,         to  deposition  taken  on  agreement,  388. 


INDEX.  G97 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CERTIFICATE  (continued)— 

of  officer  as  to  public  record  received  in  evidence  when,  405. 

of  justice  of  the  peace  as  evidence,  410. 

of  officer   of  foreign  country  as  to  legal   custodian   of   seal   of 

government,  etc.,  411. 

of  certificates  of  notaries  public  as  evidence,  419. 
of  records,  to  admit  to  evidence,  438. 
of  sale  of  sheriff,  1250. 

form  of,  1250. 
on  appeal  to  supreme  court  judge  as  to  question  of  law,  22,  1318. 

when  must  be  made,  1319. 
clerk  to  evidence,  or  to  record,  1329,  1327. 

form  of,  1329. 
of  judge  to  evidence  in  cases  triable  de  novo  in  the  supreme 

court,  1361. 

of  clerk  in  such  cases,  1362. 
CERTIFICATION— 

of  record  of  all   proceedings   by   the   trial   judge   and   reporter, 

589-590. 

form  of  reporter's   certificate,   589. 
form  of  judge's  certificate,  589. 
CERTIORARI— 

no  joinder  of  action  with,  199. 
what  is,  945. 

when  the  action  will  lie,  945. 
when  it  will  not  lie,  946. 
parties  to,  947. 

what  court  may  grant  the  writ,  948. 
prosecuted  by  ordinary  proceedings,  949. 
requisites  of  the  petition  for  the  writ,  950. 
form  of,  950. 

form  of  notice  of  application  for  writ,  950. 
form  of  the  writ,  951. 

service  and  return  of,  951. 
of  the  hearing,  952. 
of  limitation  of  the  action,  953. 
CHALLENGE— 

to  the  panel,  491. 

when  parties  must  join  in,  491. 

to  individual  jurors,  492. 

when  must  be  exercised,  492. 
causes  of,  493. 
peremptory,  number  of,  492. 
trial  of,  494. 
talesmen  as  jurors,  495. 

exemption  from  jury  service,  not  ground  for,  496. 
CHANGE— 

of  homestead,  1061. 
CHANGE  OF  PROCEEDINGS— 

when  ordered,   15. 

CHANGE  OF  VENUE— See  Change  of  Place  of  Trial. 
CHANGE  OF  PLACE  OF  TRIAL— 

when  action  is  brought  in  wrong  county,  112. 

when  changed,  costs  of,  time  of  making  application,  112,  113,  115. 

form  of  application,  116. 

when  objection  waived,  115. 

court  can  not,  on  its  own  motion,  change  the  venue  of  a  case,  123. 


698  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CHANGE  OF  PLACE  OF  TRIAL  (continued)— 
when  the  county  is  a  party,  117. 

form  of  application,  117. 
when  judge  is  a  party,  118. 

form  of  application,  118. 

on  the  ground  of  prejudice  of  judge,  inhabitants,  or  undue  in- 
fluence, 119. 

form  of  application,  119. 
by  agreement  of  parties,  and  form  of,  120. 
when  jury  can  not  be  obtained,  form  of  application,  121. 
to  what  actions  and  proceedings  the  law  applies,  122,  123. 
of  the  number  of  changes,  etc.,  124. 
time  of  making  application,  and  form  of,  125. 
how  made  in  vacation,  125. 
on  whose  application  change  granted,  126. 
of  affidavits,  who  must  make,  what  they  must  contain,  127. 
of  amended  and  counter  affidavits,  128. 
examination  of  affiants,  129. 
to  what  county  cause  will  be  sent,  130. 
when  the  change  is  perfected,  131. 
discretion  of  judge,  129,  130. 
when  transcript  must  be  filed,  131. 
costs  of  change,  when  to  be  paid,  132,  103. 
effect  of  change,  134. 
when  aided  by  attachment,  102. 
of  error  and  appeal,  135. 
CHANGE  OF  NAME— 

district  court  has  power  to,  1003. 
of  the  petition,  1004. 

form  of,  1004. 
of  the  order,  1005. 

form  of,  1005. 

when  the  change  takes  effect,  1006. 
form  of  the  notice,  1007. 
complete  record  should  be  made,  1007. 
CHARACTER— 

of  evidence,  530. 

CHARGE  OF  COURT— See  Instructions. 
CHATTEL  MORTGAGE— 

when  good  on  after-acquired  property,  954. 
on  growing  crops,  and  crops  to  be  grown,  955. 
of  mortgages  of  book  accounts,  956. 
description  of  the  property,  957. 

effect  of  retention  of  possession  by  mortgagor,  etc.,  958. 
of  the  effect  of  agreements  not  to  record,  959. 
questions  of  priority  over  landlords'  liens,  9GO. 
priority  of  lien  generally,  961. 
between  husband  and  wife,  when  valid,  962. 

when  an  instrument  is  a  chattel  mortgage,  and  when  an  assign- 
ment for  the  benefit  of  creditors,  963. 
agreements  between  mortgagor  and  mortgagee  as  to  time  of  sale, 

964. 

second  mortgages  valid,  965. 
protection  to  diligent  creditors,  966. 
actions  to  recover  property  mortgaged,  967. 
interest  of  mortgagor  before  sale,  968. 
of  bis  interest  after  sale,  969. 


INDEX.  699 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CHATTEL  MORTGAGE  (continued)— 
of  the  mortgagee's  interest,  970. 
when  valid  against  existing  creditors,  972. 
of  waiver  of  the  lien  and  of  estoppel,  973. 
enforcement  of  foreign  mortgages,  974. 
foreclosure  by  notice  and  sale,  975. 

form  of  notice,  976. 
service  of  notice,  977. 

form  of  affidavit  of  posting,  977. 
parties  to  the  proceedings,  978. 
of  the  sale,  979. 

form  of  bill  of  sale,  979. 
perpetuating  evidence  of  the  sale,  980. 

form  of  affidavit  of  sheriff  conducting  sale,  980. 
validity  of  the  sale,  981. 
power  of  sale,  982. 
of  the  remedy,  983. 
of  injunction  and  transfer  to  the  district  court,  984. 

proceedings  in  such  court,  985. 
of  levies  on  mortgaged  personal  property,  986. 
of  equitable  mortgages,  971. 
of  the  sale  of  chattel  mortgage  property  which  has  been  pledged 

as  collateral,  987. 
CHIEF  JUSTICE  OF  SUPREME  COURT— See  Supreme  Court. 

when  to  fix  terms  of  district  court,  24,  1380. 

CHILDREN — See  Infants;    see  Divorce,  Alimony  and  Annulling  Mar- 
riages;   see  Habeas  Corpus. 
CHOSES  IN  ACTION— 

are  assignable,  56,  60. 

how   levied   on;     see  Attachment;     see   Garnishee;     see   Execu- 
tions. 

CIRCUIT  COURT— 
abolished,  23. 
CITIES  AND  TOWNS— 

must  sue  in  corporate  name,  69. 
CIVIL  ACTION— See  Actions. 
CIVIL  REMEDY— See  Remedies. 

right  of,  not  merged  in  a  public  offense,  96. 

does  not  abate  by  death  or  transfer  of  interest,  10,  94,  96. 

CLAIMS— 

of  sub-contractors  of  public  buildings  and  improvements,  1 

manner  of  making,  1119. 

adjudication  of,  1120. 

release  of,  1120. 

filing  prevented,  how,  1120. 

of  laborers  and  servants,  when  preferred,  1245. 

filing  of  with  an  assignee,  934,  935. 

contesting  of,   937. 

priority  of,  938,  939. 
CLERK  OF  SUPREME   COURT— 

election  and  term  of,  19. 

duties  of,  19,  20,  1384. 

duty  of,  as  to  appeals,  1346,  1384. 

to  arrange  causes  for  hearing,  1346,  1384. 

abstracts  to  be  filed  with,  1333,  1386. 

to  distribute  abstracts  and  briefs,  1333,  1346,  1399. 

to  tax  costs  of  printing,  1333,  1401. 


700  IMM'.X. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CLERK  OF  SUPREME  COURT  (continued)— 

when  and  how  to  docket  causes,  1346,  1384. 

to  print  and  distribute  calendars,  1346,  1384. 
CLERK  OF  DISTRICT  COURT— 

election  and  term  of,  25. 

duty  of,  25,  27,  28,  31,  42,  44,  53. 

compensation  of,  42. 

of  deputy  clerk,  43. 

of  records  required  to  be  kept,  44. 

of  matters  constituting  the  record.  45. 

matters  not  part  of  the  record,  46. 

of  the  impeachment  and  correction  of  the  record,  47. 

of  nunc  pro  tune  entries,  48. 

of  lost  records,  49. 

of  record  entry  of  judgments,  50. 

construction  of  records  of,  51. 

correcting  record  after  appeal,  52. 

of  filing  pleadings,   53. 

to  make  transcript  in  cases  of  change  of  venue,  1ZJ1. 

duty  of,  with  reference  to  judgments,  642. 

duty  of,  with  reference  to  executions,  796. 

duty  of,  with  reference  to  mechanic's  liens,  1131. 

duty  of,  with  reference  to  foreclosure  of  real  estate  mortgages, 
1155. 
See  Vacation  of  Judgments. 

to  file  cross-interrogatories,  when,  376. 

to  issue  commission  to  take  depositions,  377. 

to  file  depositions  and  give  notice  thereof,  394.  31'5. 

must  arrange  causes  for  trial  on  calendar,  475. 

when  must  assess  the  amount  of  recovery,  654. 

must  be  served  with  notice  of  appeal.  1322. 

must  send  up  original  paper,  when.  1332. 

must  certify  records  on  appeal,  1329,  1362. 

See  Judgment. 

COGNOVIT — See  Confession  of  Judgment. 
COLLATERAL  SECURITY— 

holder  of  paper  for,  may  sue  it,  55. 

when  mechanic's  lien  not  allowed  because  of,  1123. 

chattel  mortgaged  property,  how  sold,   987. 
CO-MAKER— 

or  surety,  when  may  plead  by  way  of  counter  claim,  304. 
CO-PARTIES— 

part  of  may  appeal,  1326. 

See  Appeals. 

COMMENCEMENT  OF  ACTION— See  Original  Notice;  see  Petition; 
see  Change  of  Place  of  Trial;  see  Limitation  of  Actions;  see  Ac- 
tions; see  Joinder  of  Actions;  see  Venue. 

what  deemed  such,  167  to  170.  187  to  190. 

form  of,  in  petition,  218  to  222. 
COMMISSION-' 

deposition  taken  on,  372. 

notice  of  suing  out,  374. 
service  of.  375. 

form  and  requisites  of.  375. 

interrogatories   annexed   to.   375. 

cross-interrogatories  to,  376. 

to  whom  directed,  377. 


INDEX.  70 1 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

COMMISSION  (continued)— 

how  returned,  391. 

to  referees  in  partition,  form  of,  1190. 
COMMISSIONER— 

who  may  be,  to  take  depositions,  373. 

power  to  enforce  attendance  of  witnesses,  380. 

form  of  certificate  to  depositions  taken  on  notice,  386. 

form  of  certificate  to  depositions  taken  on  commission,  387. 

form  of  certificate  to  depositions  taken  on  agreement,  3btf. 

conveyance  by,  when  made,  and  what  to  contain,  692. 
form  of,  694. 
effect  of  conveyance  by,  693. 

approval  of  conveyance  by,  693. 
COMMITMENT— 

for  contempt,  form  of  warrant  for,  998. 

in  habeas  corpus  cases,  1044. 
form  of  warrant  for,  1044. 

in  injunction  case,  form  of,  1090. 
COMMON  CARRIER— See  Railroads;    see  Venue. 
COMMON  LAW— 

submissions  and  awards,  action  on,  918. 
COMPENSATION— 

of  officers  and  witnesses  in  proceedings  auxiliary  to  execution, 
845. 

of  receivers,  1246. 

of  clerk  of  district  court,  42. 
COMPETENCY— 

of  witnesses  generally,  512. 

of  defendants  in  criminal  cases,  513. 

of  witnesses  as  to   personal   transactions  and   communications, 
515-516. 

of  evidence;    see  Evidence. 
COMPLETE— 

remedy  at  law,  when  not,  8. 
COMPLETE   RECORD— 

must  be  made  in  partition  cases,  1207. 

must  be  made  when  name  is  changed,  1007. 
COMPROMISE— 

offer  to,  by  allowing  judgment,  673. 

form  of  offer,  673. 

form  of  acceptance  of  offer,  673. 

form  of  affidavit  that  notice  of  acceptance  was  delivered,  673. 

COMPUTATION  OF  TIME— 
of  redemption,  1258. 

See  Time. 
CONCLUSIONS— 

evidence  of  not  admissible,  532. 
CONCLUSIONS  OF  LAW— 

must  not  be  pleaded.  210. 

CONCURRENT  JURISDICTION— See  Jurisdiction;    see  District  Court; 
see  Remedies;    see  Actions. 

district,  superior  and  justice's  court  have  in  actions  of  forcible 

entry  and  detainer,  1412. 
CONDITIONS— 

precedent,  performance  of,  how  pleaded,  239. 


702  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CONDITIONS  (continued)— 

breaches  of  in  bonds,  how  pleaded,  241. 

new  trial  on,  626. 
CONDITIONAL— 

offer  to  confess  judgment,  674. 
CONDITIONAL   JUDGMENT— 

against  garnishee,  788,  789. 
CONDONATION— 

in  cases  of  divorce,  1015. 
CONDUCT  OF  JURY— See  Jury. 

CONDUCTING    TRIAL    BY    REFEREES— See    Referees;     see    Refer- 
ence. 
CONFESS— 

offer  to,  before  action  is  brought,  671. 

after  action   is  brought,   672. 

CONFESSION  AND  AVOIDANCE— See  Answer;     see  Pleading. 
CONFESSION  OF  JUDGMENT— 

when  may  be  entered,  665. 

by  a  partner  when  void,  666. 

matters  which  will  not  avoid,  667. 

appeals   from,   668. 

form  of  statement  for,  669. 

form  of  judgment  on,  670. 
CONFIDENTIAL    COMMUNICATIONS— 

what  are,  not  admissible  in  evidence,  509. 
CONFLICT  OF  EVIDENCE— See  Appeals. 
CONFLICT  BETWEEN  COURTS— 

State  and  federal,  770. 
CONSANGUINITY— 

of  judge   to   party,   when   it   disqualifies,    34. 

when  ground  for  change  of  venue,  118. 

CONSENT — See  Change  of  Place  of  Trial;     see  Confession   of  Judg- 
ment;   see  Reference;    see  Referee. 
CONSOLIDATION— 

of  actions,  203. 

of  actions  by  agreement,  203. 

CONSTRUCTIVE  NOTICE— See  Notice;    see  Lis  Pendens;    see  Action 
of  Right;    see  Redemption. 

CONSTRUCTION— 

of  records  of  clerk  of  district  court,  51. 

actions  against  construction  companies,  venue  of,  106    108. 

of  statutes,  136. 

of  pleadings,  207. 

of  amendments,  352. 

of  instructions,  550. 

of  records,  691. 

of  rules,  1389. 

of  attachment  law,  723. 

of  statutes  relating  to  exemptions,  834.   • 

of   statutes   providing   remedies   against   judgment   debtors,    844. 

of  former  statutes  relating  to  liability  of  railroads  for  fines,  880. 
CONSULS— 

State  courts  no  jurisdiction  of,  259. 


INDEX.  703 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CONTEMPT— 

when  judgment  debtor  in,  841. 

of  warrant  for  his  arrest,  842. 

may  give  bond  and  be  discharged,  843. 

what  acts  and  omissions  are  deemed  to  be  contempts,  988. 

contempts  of  the  general  assembly,  989. 

in  failing  to  answer  interrogatories,  470,  990. 

disobedience  of  judgments  or  orders  a,  584,  991. 

in  proceedings  auxiliary  to  execution,  841  to  843,  1)92. 

in  equitable  proceedings,  993. 

in  violation  of  injunctions,  1090,  994. 

in  habeas  corpus  proceedings,  995,  1043,  1050. 

in  failing  to  obey  a  subpoana,  361,  996. 
acts  which  are  not  considered  contempts,  997. 
how  punished,  998. 
when  must  be  served  with  a  rule-  to  show  cause,  998. 

form  of  the  rule,  998. 

form  of  when  witness  is  to  be  brought  on  an  attachment,  998. 

when  witness  may  be  committed  to  jail,  998. 
record  form  of,  in  conviction  for,  998. 

what  warrant  must  state,  999. 
proceedings,  how  to  be  entitled,  1000. 
what  is  a  sufficient  preservation  of  facts  on  which  the  order  was 

founded,  1000. 

judgment  for,  must  specify  extent  of  imprisonment,  1000. 
of  appeal,  none  lies,  1001. 

proceedings  may  be  reviewed  by  certiorari,  1001. 
punishment  for,  not  a  bar  to  an  indictment,  1002. 
officer  authorized  to  punish  for  is  a  court  within  the  meaning 

of  the  law,  1002. 

judge  may  punish  for  in  vacation,  1002. 
pleadings,  evidence,  etc.,  1000. 
CONTESTING    ELECTION— 

judgments  in  case  of,  679. 
CONTINGENT  INTERESTS— See  Levy;     see  Execution;     see  Chattel 

Mortgages. 
CONTINUANCE— 

defendant  entitled  to  when  notice  has  not  been  timely,  254. 

when  granted  on  filing  of  amendments  to  pleadings,  350. 

when  granted  generally,  479. 

effect  of  asking  time  to  make  application  for,  480. 

on  the  ground  of  absence  of  witnesses,  481. 

on  the  ground  of  absence  of  a  party,  482. 

on  the  ground  of  absence  or  sickness  of  attorney,  483. 

when  the  motion  must  be  filed,  485. 

amendment  of  showing  for,  486. 
objections  to  application  for,  487. 
at  whose  costs,  488. 
decision  of  the  motion,  484. 

form  of  motion,  489. 

form  of  affidavit,  489. 

not  entitled  to  in  action  of  forcible  entry  and  detainer,  in  a 
certain  case,  1418. 

practice  on,  490. 
Of  business  in  court  when  judge  fails  to  appear,  27. 

on  final  adjournment,  24. 


iO-i  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

CONTRACTS— See  Limitation  of  Actions, 
actions  on  written,  233. 
statute  of  frauds,  effect  of  on,  452  to  459. 
written,  homestead  may  be  sold  on,  1054. 
for  furnishing  materials,  labor,  etc,  1125. 

made  with  the  husband,  lien  claimed  en  the  wife's  property, 

1126. 

pleading  breach  of,  241. 
of  the  cancelation  of  real  estate,  1157. 
CONTRACTOR— 

Action  on  bonds  of,  1143. 

See  Mechanics'  Liens  and  Claims. 
CONTRADICTORY   DEFENSES— 
may  be  pleaded,  300. 

CONTRADICTORY  STATEMENTS— See  Impeachment;    see  Witnesses. 
CONTRIBUTION — See    Summary    Proceedings;     see    Judgments;     see 

Real  Estate  Mortgages. 
CONTROVERSY— 

submission  of  without  action,  675. 
pending  action,  676. 
form  of  agreement  of  parties  to,  677. 
CONVEYANCE— 

of  claim  pending  action,  effect  of,  94. 
by  a  commissioner,  when  made,  692. 
what  to  contain,  692. 
effect  of,  693. 

approval  of  in  vacation,  694. 
form  of  by  a  commissioner,  694. 

approval  of  by  court,  694. 
of  the  homestead,  1056. 
in  partition,  1202. 
form  of,  1202. 
effect  of,  1203. 
how  pleaded,  241. 
CONVERSION— 

action  for  against  whom,  88;    see  Chattel  Mortgages. 
CONVICTION— See  Contempts. 
COPY— 

of  maps  when  admitted  in  evidence,  406. 

of  motion  for  continuance  or  of  objections  need  not  be  served 

on  the  adverse  party,  488. 

when  not  attached  to  pleading,  ground  of  demurrer,  233,  270. 
of  account  sued  on,  must  be  set  out,  234. 

See  Pleadings;    see  Petition;    see  Answer;    see  Rules  of  Prac- 
tice;   see  Evidence. 
CORONER— 

when  may  act  as  sheriff,  808. 
CORPORATIONS— 

must  sue  in  corporate  name,  69. 

manner  of  service  of  notice  on  agent  of,  175,  176. 

manner  of  service  on  municipal,  177. 

appointment  of  receivers  for,  1241. 

venue  in  actions  against.  105  to  108. 

See  Venue;    see  Railways;    see  Municipal  Corporations 
COSTS— 

of  attending  suit  in  wrong  county,  115. 


INDEX.  705 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

COSTS   (continued) — 

defendant  unreasonably  defending  to  pay,  168. 

fees  for  serving  original  notice  not  taxed  to  one  not  an  officer, 

172. 

taxed  to  party  pleading  redundant  matter,  242. 
of  taking  deposition  paid  in  first  instance  by  party  procuring 

it  to  be  taken,  401. 
in  cases  of  continuance,  488. 
of  new  trial,  627. 

when  security  for  may  be  required,  695. 
when  the  application  must  be  mad<*  696. 
form  of  application  for  security  for,  697. 

of  affidavit  accompanying  motion,  697. 

counter  affidavit,  697. 
of  the  bond  for,  698. 

form  of,   698. 

of  motion  for  additional  security,  698. 
attorneys  and  officers  of  court  can  not  become  sureties  on  bond 

for,  698. 

failure  to  give  bond,  effect  of,  699. 
what  costs  are  taxable,  700. 
when  should  be  taxed  to  plaintiff,  701. 

should  be  taxed  to  defendant,  702. 
when  should  be  apportioned,  703. 
discretion  of  court  as  to  taxing,  704. 
presumption  that  court  acted  correctly  in  taxing,  704. 
uncollected,  when  may  be  recovered  from  successful  party,  705. 
assignee  liable  for,  705. 

right  to  recover  depends  on  recovery  of  judgment,  706. 
of  re-taxation  of,  707. 

when  clerk  must  pay  costs  of  re- taxation,  707. 
on  appeals,  duty  of  clerk,  708. 
attorney's  fees,  when  taxed,  709,  1410. 
division  of  fee,  affidavit,  710. 
opportunity  to  pay,  711. 
in  supreme  court,  1401,  1410. 

when  garnishee  may  demand  his  fees  and  mileage,  777. 
when  garnishee  will  be  charged  with,  781. 

defendant  disclaiming  in  an  action  of  right  to  recover,  when,  866. 
in  partition  cases,  paid  by  whom,  1205. 
in  actions  of  forcible  entry  and  detainer,  1420. 

See  Appeals. 
CO-SURETY— 

may  plead  counter  claim,  when,  304. 
COUNTER  CLAIM— 

when  may  be  pleaded,  though  barred,  163,  305. 

pleading  new  matter  constituting,  301. 

whit  constitutes,  302. 

when  new  party  to  brought  in,  303. 

tailnre  to  plead  no  bar  to  cause  of,  306. 

equitable,  may  be  pleaded  in  law  actions,  309. 

stnted  in  separate  counts,  310. 

of  demurrer  to,  315. 

judgment  for  excess  of,  636. 

conclnsiveness  of  judgment  on,  649. 

on  attachment  bond,  744,  745. 

form  of  petition  in,  745. 

Vol.  II.— 45. 


706  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

COUNTERMAND— 

form  of,  1325,  1387. 
COUNTS— 

each  cause  of  action  stated  in  a  separate,  248. 

each  must  be  sufficient  in  itself,  248. 

must  be  consecutively  numbered,  248. 

when  defendants  may  be  joined  in  same,  248. 

same  cause  of  action  may  be  stated  in  different,  249. 

demurrer  must  specify  which  it  is  directed  to,  264. 

each  counter  claim,  or  cross-defense,  to  be  stated  in  a  separate, 
310. 

may  be  one  prayer  for  judgment  on  several,  312. 
COUNTY— 

may  sue  on  bond  given  to  it,  66. 

must  sue  in  its  corporate  name,  69. 

of  defendant's  residence  when  suits  brought  in,  109,  110. 

venue  changed  to  what,  130. 

manner  of  service  of  original  notice  on,  178. 

to  what  one  fines  belong,  877. 

See  Venue;    see  Change  of  Place  of  Trial. 
COUNTY  ATTORNEY— 

may  bring  action  to  enjoin  nuisances,  1072,  1073. 

notice  must  be  given  of  hearing  of  habeas  corpus  case,  1036. 

form  of,  1036. 
COUNTY  SEAT— 

courts  to  be  held  at,  24. 
COUNTY   TREASURER— 

limitation  of  action  on  bond  of,  144. 
COURT  HOUSE— 

sheriff  to  procure,  26. 

COURTS — See  Supreme  Court;    District  Court;    Superior  Courts;    Clerk 
of  District  Court. 

have  power  to  administer  oaths,  34,  922. 

to  be  held  at  places  provided  by  law,  24. 

by  consent  may  be  held  at  other  places,  30,  34. 

rules  of,  29,  1379  to  1402,  1403  to  1411. 

take  judicial  notice  of  what,  226. 

duty  of  relating  to  pleadings,  230. 

See  Terms  of  Court;     Adjournments;     Rules. 

sheriff  to  procure  place  to  hold,  26. 

when  to  be  held,  18,  23,  24,  34. 

records  of,  31. 

to  be  signed,  31. 

jurisdiction  of  raised  by  demurrer,  259. 

how  records  of  proved,  408,  409,  411. 

may  make  order  allowing  the  examination  of  witnesses,  461. 

discretion  of  in  introduction  of  evidence,  503.  520. 

may  give  instructions  on  their  own  motion,  541. 
See  Instructions. 

manner  of  trial  to,  576. 

when  finding  of  facts  necessary  on  trial  by,  575. 

manner  of  trial  of  equitable  actions,  577. 
See  Trial;    see  Appeals;    see  Jurisdiction. 

discretion  of  court  in  trial  of  equity  causes,  577. 

may  refer  causes,  when,  580,  581. 
form  of  order  of  reference,  581. 

action  of  on  report  of  referee,  586. 


INDEX.  707 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

COURTS  (continued)— 

new  trial  granted  for  irregularities  in  proceedings  of,  606. 

judgments  of  superior,  how  made  liens,  688. 
See  Judgments;    see  U.  S.  Courts. 

law  applicable  to  when  acting  as  a  jury,  689. 

discretion  as  to  taxing  costs,  704. 

conflict  between,  770. 

power  of  on  hearing  in  auxiliary  proceedings,  839. 

power  of  relating  to  injunctions,  1077  to  1079. 

power  of  in  mandamus  cases,  1117. 

enforcing  mechanic's  lien  in,  1132. 

presumptions  of  regularity  of  proceedings  of,  32,  688,  704,  1208, 
1369,  1370. 

power  of  court  in  quo  warranto  proceedings,  1231. 
COVENANTS— 

breaches  of,  how  pleaded,  215. 

COVERTURE— See   Husband   and   Wife;     see   Wife;     see    Mechanics' 
Liens. 

CREDITS— 

when  whole  account  must  be  made  evidence,  447. 
CREDITOR— 

redemption  by,  1252. 

who  is  a  creditor  under  the  statute,  1253. 

redeeming  fvom  each  other,  1257. 

See  Redemption. 

CREDITOR'S  BILL— See  Auxiliary  Proceedings. 
CRIMINATE— 

evidence  tending  to,  510. 
CROPS    GROWING— 

regarding  levy  on,  809. 

chattel  mortgage  on;    see  Chattel  Mortgages. 

damage  to  by  fire;    see  Railroads. 
CROSS-DEMAND— See  Counter  Claim. 
CROSS-EXAMINATION— 

of  witness  making  affidavit,  433. 

on  taking  deposition,  376. 

on  perpetuating  testimony,  462. 

of  witnesses  on  trial  of  a  case,  523. 
CROSS-INTERROGATORIES— 

on  perpetuating  testimony,   462. 

to  commission  to  take  depositions,  376. 

form  of,  376. 
CROSS-PETITION— 

when  may  be  filed,  307. 

in  actions  for  divorce,  when  may  be  filed,  1017. 
CUSTODY  OF  THE  LAW— See  Receivers. 
DAMAGES— 

form  of  petition  in  action  for,  by  assault,  250. 

new  trial  for  error  In  assessing,  613. 

assessment  of  in  cases  of  default,  654. 
of  generally,  655. 

actions  for  wrongfully  suing  out  attachments;    see  Attachment. 

actual,  what  are  in  attachment  suits,  746. 

exemplary,  what  are,  748. 
in  attachment  suits,  748. 


70S  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DAMAGES  (continued) — 

nominal,  what  are,  749. 

in  attachment  cases,  749. 

in  attachment  cases  for  debts  due  the  State,  759. 

measure  of  in  actions  against  railroads  for  setting  out  fire,  885. 

double  for  killing  stock,  act  for  constitutional,  891. 

actions  for  by  purchaser  of  real  estate  at  sheriff's  sale,  1270. 
See  Action  of  Right;    see  Replevin  and  Detinue. 

in  case  of  nuisance,  1168. 

in  case  of  trespass,  1303,  1307. 

in  case  of  waste,  1309,  1310. 

See  Petition;    see  Answer;    see  Pleading. 
DAMS— 

how  partitioned,  1179. 
DATE— 

of  judgment  liens;    see  Judgments. 
DAYS — See  Time;    see  Computation  of  Time. 
DEATH— 

does  not  affect  actions,  96. 

judgment  vacated  when  rendered  after,  1213. 

no  ground  for  dismissing  an  appeal,  1347. 

of  sheriff,  who  to  execute  process  in  his  hands,  808. 

See  Actions. 
DEBTS— 

contract  agreeing  to  answer  for  debt  of  another,  455. 

not  due,  attachment  for,  720,  721. 

due  the  State;  see  Attachment. 

due  by  negotiable  papers,  how  garnished,  790. 

due  to  defendant,  may  be  paid  by  garnishee  to  sheriff,  782. 

See  Garnishment. 
DECAYING   PROPERTY— 

sale  of  on  attachment,  763. 

See  Attachment. 
DECEASED  PERSON— 

writings  of,  when  admitted  in  evidence,  439. 
DECISIONS  AND  OPINIONS— 

of  the  Supreme  Court,  1391. 
DECREE— 

setting  aside  and  modifying  in  divorce  cases,  1027. 

in  supreme  court,  how  prepared  and  filed,  1357,  1393. 
in  cases  tried  de  novo,  1366. 

See  Foreclosure  of  Mortgages. 
DEEDS— 

when  evidence,  437. 

when  certified  copies  of  record  of  admissible  in  evidence,  438. 

when  executed  by  a  commissioner  appointed  by  the  court,  692. 
form  of,  approval  of,  693.  694. 

of  sheriff  for  lands  sold  on  execution,  1267. 

of  referees  in  partition,  1202. 
DEFAULT— 

judgment  by  when  rendered,  652. 

disposition  of  answer  before,  653. 

assessment  of  damages  in  cases  of,  654. 

defendant  may  appear  and  cross-examine  witnesses,  654. 

forms  of  judgment  in  cases  of,  657. 


• INDEX. 709 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DEFAULT  (continued)— 

setting  aside  a,  660. 

discretion  of  court  in,  660. 
in  the  supreme  court,  661. 

re-trial  where  judgment  rendered  by,  on  notice  by  publication,  662. 

garnishee  in  must  be  served  with  notice  to  show  cause  why  execu- 
tion should  not  issue  against  him,  780. 
may  move  to  set  aside,  780. 
form  of  motion  for,  780. 
form  of  showing  to  set  aside,  780. 

presumption  in  favor  of  judgments  by,  658. 

when  service  of  notice  is  made  by  publication,  659. 

bond  may  be  required,  659. 

must  move  to  set  aside  before  appealing,  662. 

provisions  for  re-trial  on  service  by  publication  not  applicable  to 
divorce  cases,  662. 

title  of  purchases  of  land  sold  on  judgment  is  not  effected  by  re- 
trial, 663. 

personal  judgment  can  not  be  rendered  when,  664. 
DEFECT  OF  PARTIES— See  Parties;    see  Demurrer. 
DEFENDANT — See  Actions;    see  Parties. 

competency  of  as  witness  in  criminal  case,  513. 

when  costs  should  be  taxed  to,  702. 

examination  of,  in  attachment  proceedings,  736. 

notice  to  of  examination  of  perishable  property,  form  of,  7C3. 

who  made  in  actions  to  enforce  mechanics'  liens,  1133. 

redemption  made  by,  1251. 

surviving,  execution  may  issue  against,  1274. 

proceedings  when  dead,  1276. 
DEFENSE— 

by  general  denial,  232,  283. 

by  partial  denials,  287. 

by  specific  denials,  286. 

by  new  matter,  297. 

affirmative  must  be  specially  pleaded,  298. 

by  inconsistent  defenses,  300. 

by  new  matter  constituting  counter  claim,  301,  302. 

joint,  how  pleaded,  308. 

must  be  pleaded  in  separate  counts,  310,  322. 

in  case  of  reply,  322. 

equitable  may  be  pleaded  when,  309. 

See  Pleading;  see  Answer. 
DELIVERY  BOND— 

in  attachment  cases,  741. 

form  of,  741. 

form  of  approval  of,  741. 

in  replevin  cases,  904. 
form  of,  904. 
form  of  approval  of,  904. 
DEMAND— 

for  judgment  in  petition,  244. 

form  of,  244. 

in  equity  cases.  245. 
forms  of,  245. 

for  alternative  relief,  245. 

on  money  claim,  only  one  praver  needed.  246. 

when  necessary  in  replevin.  906. 

DEMAND  FOR  RELIEF— See  Petition;    see  Demand. 
DEMURRER— 

will  not  lie  to  wrong  proceedings,  11. 


710  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DEMURRER   (continued)— 

when  statute  of  limitations  raised  by,  165,  268. 

is  a  pleading,  208. 

when  will  lie  generally,  258. 

must  be  interposed.  258. 
for  formal  defects  abolished,  258. 
what  it  confesses,  258. 

must  specify  and  number  grounds  of  objection,  238,  271. 
in  equity  case,  258,  267. 
not  aided  by  extrinsic  evidence,  258. 
when  court  has  no  jurisdiction,  259. 

plaintiff  has  no  legal  capacity  to  sue,  261. 

another  action  pending,  262. 

defect  of  parties,  263. 

facts  stated  are  insufficient,  264. 

lies  only  for  defects  appearing  on  face  of  the  pleading,  260. 
will  not  lie  for  misjoinder  of  parties,  263. 

nor  because  prayer  asks  relief  which  facts  pleaded  will  not 
;  warrant,    264. 

to  denials,  264. 

must  be  confined  to  defective  count,  264. 

generalJy,  when  lies,  265. 

will  not  have  effect  of  plea  of  nul  tiel  record,  2C5. 

will  not  lie  to  part  of  a  count,  2G5. 
effect  of  a  demurrer,  266. 
in  equity  cases,  267. 

when  must  specify  causes,  267. 

will  not  lie  to  single  allegations,  267. 

may  be  both  general  and  special,  267. 
•when  action  barred  by  statute  of  limitations,  268. 
when  contract  sued  on  not  in  writing.  269. 
when  copy  of  instrument  sued  on  not  attached,  270. 
effect  of  failing  to  demur,  or  waiving,  272. 
of  standing  on,  273. 
not  withdrawn  without  leave,  274. 
suspends  necessity  for  further  pleading,  274. 
argument  of,  275. 
decision  of,  275. 
no  joinder  in  necessary,  275. 

may  be  sustained  to  some  counts  and  overruled  as  to  others,  275. 
how  judgment  rendered  against  a  party  failing  to  plead  over  after, 

275. 

forms  of,  276. 

to  evidence  not  provided  for  by  statute,  277. 
judgment  on,  affirmed  in  supreme  court  is  final,  278. 
objections  which  should  have  been  raised  by  demurrer  in  lower 

court  can  not  be  first  raised  in  supreme  court.  278. 
after  a  demurrer  to  same  pleading  not  permitted,  278. 
to  answer,   grounds  of,  314. 
to  counter  claim  grounds  of,  315. 
to  reply,  323. 
judgment  on,  656. 

form  of  on  to  answer,  657. 
form  of  on  to  petition,  657. 

See  Appeals. 
DENIALS— 

not  demurrable,   264. 
general  in  answer,  282. 

form  of,  282. 


INDEX.  711 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DENIALS  (continued)— 

what  it  puts  in  issue,  283. 

proof  thereunder,  283. 
by  guardians  in  answer,  284. 

form  of,  284. 
of  knowledge  or  information,  285. 

form  of,  285. 
specific  in  answer,  286. 
partial  in  answer,  287. 
alternative  in  answer,  288. 
of  time,  place,  etc.,  289. 
in  answer  when  judgment  is  pleaded,  290. 
of  signature,  291,  292. 

what  is  sufficient,  293. 
form  of  answer  denying  specifically,  295. 

denying  signature,  296. 
allegations  of  answer  when  deemed  denied,  319. 

of  reply  deemed  denied",  324. 
In  reply,  321. 

See  Pleading;    see  Answer;    see  Supreme  Court. 
DEPOSITIONS— 

when  and  by  whom  taken,  367,  371. 

one  taking  may  use  them  or  not,  367. 

opposing  party  may  offer  depositions  in  evidence,  367. 

may  offer  part  of  a  deposition,  367. 
notice  and  interrogatories  need  not  be  on  file  with  the  clerk  on  the 

day  fixed  for  the  commission  to  issue,  367. 
requisites  of  the  notice,  368. 
what  is  reasonable  notice,  369. 
of  service  and  return  of  the  notice,  370. 
form  of  the  notice,  371. 
service  of  notice  by  publication,  371. 
when  taken  on  commission,  372. 
who  may  act  as  commissioner,  373. 
of  the  notice  of  suing  out  a  commission,  374. 

of  the  service  of  notice,  375,  376. 

form  of  the  notice,  375. 

of  the  form  of  the  interrogatories,  375. 

form  of  cross-interrogatories,  376. 

of  the  form  of  the  commission,  377. 
taken  by  agreement,  378. 

form  of  agreement,  378. 

presence  of  parties  during  taking  of,  effect  of,  379. 
how  witnesses  produced  and  their  attendance  enforced,  380. 
subpoenaes  served  by  whom,  380. 
of  prisoner  in  penitentiary,  how  taken,  380. 
form  of  caption  to  depositions  taken  on  notice,  381. 
duty  of  officer  taking,  381. 
Depositions  taken  in  shorthand,  381. 
form  of  caption  to,  when  taken  on  commission,  382. 

when  taken  on  agreement,  383. 
exhibits,  how  identified  and  attached,  384. 
of  form  of  commencement  of  cross-examination,  385. 
form  of  jurat  of  officer,  385. 
next  deposition,  how  commenced,  385. 
adjournment,  form  of  statement  of,  385. 
manner  of  commencing  after  adjournment,  385. 


712  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DEPOSITIONS  (continued)— 

requisites  and  form  of  certificate  to  depositions  taken  on  notice, 
386. 

certificate  naay  be  amended,  386. 

form  of  certificate  when  taken  by  a  stenographer,  386. 
requisites  and  form  of  certificate  when  taken  on  commission,  387. 
form  of  certificate  when  taken  on  commission  and  parties  are 

present,  387. 

requisites  and  form  of  certificate  when  taken  on  agreement,  388. 
instructions  to  be  followed  by  officer  taking  depositions,  389. 
form  of  fee  bill,  389. 
authentication  of,   390. 

form  of,  390. 

manner  of  returning,  391. 
when  reason  for  taking  must  appear  in,  392. 
opening  the,  393. 
can  not  be  withdrawn,  394. 
when  may  be  used  in  another  cause,  394. 

in  such  case  they  must  be  filed  therein,  or  leave  procured  to 

use  them,  394. 
notice  of  the  filing  of,  395. 
form  of  the  notice,  395. 
how  served,  395. 

unimportant  deviations  will  not  exclude,  396. 
exceptions  to,  how  taken,  and  when  before  trial,  397. 
exceptions  to  on  the  ground  of  incompetency  or  irrelevancy,  3'J8. 
used  to  impeach  a  witness,  399. 

when  taken  on  trial  before  a  justice  of  the  peace,  403. 
^when  will  be  suppressed,  368,  369,  373,  379,  396,  397,  398. 
'exceptions  to,  must  be  decided  before  trial,  401. 

when  waived,  401. 
costs  of  taking,  paid  by  whom,  401. 
to  perpetuate  testimony,  who  may  take,  460. 
approval  of,  464. 
use  of,  464. 
taking  them  conditionally,  514. 

See  Appeals. 
DEPOT  GROUNDS— 

of  railroads,  when  may  be  fenced,  889. 
DEPUTY— 

sheriff  may  act  for  his  principal,  768. 

may  take  answer  of  garnishee,  772. 
DESCRIPTION— 

of  property  in  chattel  mortgages,  957. 

See  Pleading;    see  Unknown  Defendants;    see  Replevin  and 

Detinue. 
DESERTION— 

a  ground  of  divorce,  1011. 

of  family  by  husband,  wife  may  defend  actions,  71. 
DETENTION— 

wrongful,  alleged  in  replevin,  900. 
DETINUE — See  Replevin  and  Detinue. 
DEVISE— 

of  homestead,  1068. 
DEVISEE— 

judgments  against,  680. 
DILIGENCE— See  New  Trial;  soc  Continuance. 


INDEX.  713 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DILIGENT— 

creditors   protected,    966. 
DISABILITY— 

of  piamtiff  extends  statute  of  limitations,  155. 

of  judge,  ground  for  change  of  venue,  lid. 

form  of  application,  118. 
DISCHARGE— 

of  judgment,  643. 

of  attachment;  see  Attachment. 

of  mechanic's  lien,  1141. 
bond  to,  form  of,  1141. 

of  juror  for  sickness,  496. 

of  jury  when  cause  is  continued,  553. 

of  jury  in  other  cases,  558. 
DISCLAIMER— 

defendant  in  action  of  right,  entering  recovers  his  costs,  866. 

form  of  in  action  of  partition,  1186. 
DISCONTINUANCE— See  Dismissal. 
DISCHARGE  OF  ATTACHMENT— See  Attachment. 
DISCOVERY— 

bill  of,  when  may  be  filed,  846. 
form  of,  847. 
proceeding  in,  847  to  850. 

See  Auxiliary  Proceedings. 
DISCRETION— 

of  court  in  granting  or  refusing  change  of  venue,  129. 

of  in  taxing  costs,  704. 

of  courts  not  controlled  by  mandamus,  1109. 

of  lower  court  reviewed  on  appeal,  13 1 5. 

See  Courts. 
DISMISSAL— 

error  in  proceedings  will  not  work,  10. 

judgment  of,  647,  648. 

forms  of  entry  of,  648. 

in  vacation,  650. 

of  action  when  no  bar,  651. 

DISOBEDIENCE  OF  PROCESS— See  Contempts. 
DISQUALIFICATION  OF  JUDGES— 

when,  34. 
DISSENTING  OPINIONS— 

of  supreme  judges  to  be  written  and  filed  with  clerk,  1354,  1391. 
DISSOLUTION— 

of  attachment;    see  Attachment. 

of  injunction;    see  Injunction. 
DISTRICTS  JUDICIAL— See  Judicial  Districts. 
DISTRICT  ATTORNEY— See  County  Attorney. 
DISTRICT  COURT- 
Us  rules,  29. 

its  organization,  23. 

election  and  term  of  judges,  23. 

judges  can  not  sit  together,  23. 
fix  terms  of  court,  24. 

may  be  assigned  by  chief  justice  of  supreme  rnurt,  24. 
number  of  may  be  increased  or  diminished,  23. 
may  order  special  terms,  when,  24. 


714  IXDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DISTRICT  COURT    (continued)— 

may  order  sheriff  to  procure  place  to  hold  court,  23. 

failing  to  attend,  effect  of,  27. 

may  adjourn  court  by  written  order  or  by  telegram,  28. 

may  provide  rules,  29. 

may  decide  cases  in  vacation,  when,  30. 

when  may  receive  verdict  after  time  for  court  to  begin  in 

another  county,  30. 
amending  record,  31. 
can  not  practice  law,  34. 
disqualified  from  acting,  when,  34. 
can  not  delegate  powers,  34. 
may  administer  oaths,  34. 
solemnize  marriages,  34. 
suspend  clerk  of  sheriff  from  office,  31. 
approve  bonds,  when,  34. 
may  appoint  receivers,  34. 
may  take  acknowledgments,  34. 
jurisdiction  of,  33,  34,  1381,  1412. 
presumption  of  regularity  of  proceedings  of,  32. 
discretion  of  in  introduction  of  evidence,  520. 

See  Records, 
proceedings   in   case  where   foreclosure   of   chattel   mortgage    is 

transferred  to  district  court,  985. 
may  enforce  mechanics'  liens,  1132. 
certifying  record  for  bill  of  exceptions,  589. 

See  Courts;     see  Jurisdiction;     see   dent   ot   the  District 

Court. 
DISTRICT  JUDGE— 

election  and  term  of  office,  23. 
to  fix  terms  of  court,  24. 
may  order  special  terms,  when,  24. 
failing  to  attend,  effect  of,  27. 

See  District  Courts;    see  Courts. 

DISTRIBUTION  OF  PROCEEDS  OF  ATTACHMENT  SALE— See  At- 
tachments. 
DIVIDENDS— 

by  an  assignee,  940. 
DIVISION— 

of  supreme  court  into  two  sections,  21. 

of  answer,  310. 

each  defense  stated  in  a  separate,  310. 

of  remedies,  1. 

of  opinions  of  judges  of  the  supreme  court,  21,  1391. 

See  Counts;    see  Pleadings;    see  Answer;     see  Appeals. 
DIVORCE,  ALIMONY  AND  ANNULLING  MARRIAGES— 
venue  in  actions  for,  110. 
original  notice  need  not  claim  alimony,  168. 
no  cause  of  action  joined  with,  except  for  aliraony,  1SJD. 
of  the  jurisdiction  and  trial,  1008. 
can  not  be  granted  by  consent  of  parties,  1008. 
grounds  for,  generally,  1009. 
for  adultery,  1010. 
for  desertion,  1011. 
for  conviction  for  a  felony,  1012. 
for  habitual  drunkenness,  1013. 
for   inhuman  treatment,    1014. 
of  condonation  and  misconduct  of  the  plaintiff,  1015. 


IXDEX.  715 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

DIVORCE,  ALIMONY  AND  ANNULLING  MARRIAGES  (continued)— 
of  the  petition,  1016. 
form  of,   1016. 
for  inhuman  treatment  must  set  out  the  facts  constituting, 

1016. 

form  of  allegation  in  case  of,  1016. 
should  be  verified,  1016. 
effect  of  failing  to  verify,  1016. 

cross-petition  for  divorce,  when  may  be  filed,  1017. 
of  temporary  alimony,  1018. 

application  for,  how  made,  1018. 
failure  to  pay,  how  punished,  1018. 
of  attachment  in,  1019. 

allowed  by  order  of  court  or  judge,  761,  1019. 
may  be  granted  with  or  without  bond,  1019. 
may  be  levied  on  homestead,  1019. 
attorney's  fees,  may  be  allowed  in  as  costs,  1020. 

husband  may  be  sued  for,  1020. 
custody   of  children,   1021. 

alimony,  permanent,  allowed  without  divorce,  1022. 
power  to  grant,  1023. 
when  allowance  is  proper,  1024. 
when  specific  property  may  be  allowed,  1025. 
lien  of  the  judgment  in,  1026. 
setting  aside  or  modifying  decree,  1027. 
annulling  marriages,  causes  for,  1028. 

of  the  petition,  1029. 
legitimacy  of  children,  1030. 

allowance  of  compensation,  when  marriages  annulled,  1030. 
allowance  of  alimony  in  supreme  court,  1409. 
DOCKET — See  Calendar;    see  Appeals. 
DOCUMENTARY  EVIDENCE— See  Evidence. 
DOCUMENTS— 

original,  when  sent  to  supreme  court,  1332. 

DOMESTIC  CORPORATION— See  Corporations;    see  Venue;    See  Serv- 
ice. 
DUPLICATE— 

receipts  of  receiver,  evidence;   see  Evidence. 
EFFECT  OF  PLEADING — 

rule  of  construction,  207. 
EJECTMENT— 

action  to  recover  real  property,  a  substitute  for,  851. 
ELECTION— 

when  separate  suits  are  brought  on  note  and  mortgage,  1146. 
ELECTIONS— See  Contesting  Elections. 
EMPANELING   A  JURY— See  Jury. 
ENCUMBRANCE— 

of  homestead;   see  Homestead. 
ENTRIES— See  Judgment;   see  Evidence. 
EQUITABLE  DEFENSES— 

may  be  pleaded,  when,  309. 
EQUITABLE  COUNTER  CLAIM— 

may  be  pleaded  in  law  action,  309. 
EQUITABLE  INTERESTS— 

in  lands,  how  reached,  840. 


716  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

EQUITY  JURISDICTION— 

courts  of,  will  grant  relief  by  vacating  judgments,  when,  1218. 

See  Equitable  Proceedings;    see  Equity. 
EQUITABLE  LIENS— See  Equitable  Mortgages. 
EQUITABLE  MORTGAGES— 

when  recognized  and  enforced,  971. 
EQUITABLE  PROCEEDINGS— 
a  civil  action,  when  by,  2,  6. 
when  relief  not  granted  by,  7. 
when  action  by  ordinary  or  equitable,  8. 
trial  of  equitable  issues  in  law  action,  13,  473. 
cases  and  issues  not  tried  as  equitable,  14. 
of  powers  of  courts  of  equity,  9. 
petition  in  to  be  separated  into  paragraphs,  251. 

form  of  petition  in,  251. 
demurrer  in,  and  form  of,  267. 
single  allegations  not  demurrable,  267. 

See  Trials. 

to  subject  property  of  judgment  debtor,  843. 
form  of  petition  in,  847. 

See  Actions;    see  Contempts. 
EQUITY— 

powers  of  courts  of,  9. 
new  trials  in,  after  judgment  at  law,  620. 
when  redemption  may  be  made  by  suit  in.  1255. 
See  Redemption;  see  Remedies,  Actions,  Equitable  Proceedings, 

Jurisdiction,   Courts. 
ERROR— 

in  form  of  proceeding,  10,  11,  12. 

not  affecting  substantial  rights  disregarded,  351. 

when  without  prejudice  in  instructions,  552. 

with  prejudice  in   instructions,  553. 
how  cured  by  instructions,  554. 
in  assessing  damages  by  jury,  new  trial  for,  613. 
of  law,  new  trial  for,  621. 

See  Assignment  of  Errors;    see  Appeals. 
ESTATE— 

particular  or  superior,  when  pleaded,  212. 

ESTATES  OF  DECEASED  PERSONS— See  Executor  and  Administra- 
tor. 
ESTOPPEL— 

when  city  not  estopped  by  enclosure  of  street,  140. 

must  be  specially  pleaded,  216,  298;   see  Answer. 

mortgagee  not  estopped  to  foreclose,  when,  9(3. 
EVIDENCE— 

of  non-residence,  157. 

demurrer  to,  277. 

not  to  be  stated  in  pleading.  209,  224. 

what  proper  under  denial,  283. 

public  records,  how  proved.  402. 

of  field  notes  and  plats,  403. 

of  original  entries,  how  made.  404. 

certificates  of  public  officers,  405. 
of  loss  of  a  paper,   405. 


INDEX.  717 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

EVIDENCE  (continued)  — 

of  copies  of  maps,  etc.,  in  surveyor  general's  office,  406. 

of  duplicate  receipts  of  receiver  and  register  of  U.  S.  land  office, 

407. 

of  records  of  courts  of  Iowa  and  of  federal  courts,  408. 
of  judicial  records  of  courts  of  another  State,  409. 
form  of  authentication  of  record  of  courts  of  Iowa  for  use  in  Iowa, 
408. 
of  authentication  of  record  of  federal  courts  for  use  in  Iowa, 

408. 
of  authentication  of  records  of  another  State  for  use  in  Iowa, 

409. 
of  certificates  of  justice  of  the  peace,  410. 

made  by  justice  in  office,  410. 
of  records  of  courts  of  foreign  countries,  411. 

form  of  certificate  by  officer  of  foreign  country  having  charge 

of  its  seal,  etc.,  411. 
of  acts  of  the  executive  of  the  U.  S.  or  of  any  State,  412. 

of  the  executive  of  any  foreign  government,  412. 
of  proceedings  of  the  legislature  of  any  State  or  government,  413. 
of  statutes,  and  of  unwritten  law,  414. 

presumptive  evidence,  414. 
of  ordinances  of  a  town  or  city,  415. 

court  will  not  take  judicial  notice  of,  415. 
of  the  assignment  of  a  foreign  judgment,  416. 
of  historical  works,  etc.,  417. 
of  Carlisle  life-tables,  417. 
of  form  of  authentication  of  probate  of  will,  418. 

of  authentication  of  public  record,  418. 
of  certificates  of  notaries  public,  419. 

prima  facie  evidence  of  what,  419. 
of  records  of  marriages,  420. 

books  and  writings  in  possession  of  the  adverse  party,  421. 
compelling  the  production  of  books  of  a  corporation,  422. 
petition  for,  423. 
form  of,  423. 
of  the  rule,  424. 
form  of,  424. 
form  of  answer  to,  425. 
effect  of  failure  to  obey  the  rule,  426. 
of  using  the  books  or  papers  called  for  in  evidence,  427. 
of  notice  to  produce  papers,  428. 

form  of,  428. 

of  secondary  evidence,  when  admitted,  429. 
proofs  by  affidavit,  430,  431. 
when  one  compelled  to  make,  432. 
of  notice,  433. 
of  cross-examination,  433. 

presumptive  evidence,  signature  and  seal  of  officer,  434. 
proof  of  publication,  435. 
posting  notices,  435. 
perpetuation  of,  436. 
deeds  and  private  writings.  437. 

certified  copies  of  records,  438. 
of  writings  of  a  deceased  person,  439. 
of  subscribing  witnesses,  440. 
of  handwriting.  441. 

evidence  of  experts  as  to  handwriting,  441. 
books  of  account,  how  proved,  437,  442. 


INDEX. 
Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 


EVIDENCE  (continued) — 

what  is  the  book  of  original  entries,  443. 

charges  made  in  the  ordinary  course  of  business,  444. 

when  the  entries  must  be  shown  to  have  been  made,  445. 

entries  made  by  third  persons,  446. 

of  credits,  447. 

referring  to,  448. 

explaining  accounts  kept  in  books  of  another,  449. 
accounts  which  are  barred,  450. 

when  taken  as  true,  451. 
cf  the  statute  of  frauds,  452  to  459. 
of  contracts  relating  to  sale  of  personal  property,  453. 

made  in  consideration  of  marriage,  454. 

wherein  a  person  promises  to  answer  for  the  debt,  default,  etc., 
of  another,  455. 

for  the  creation  or  transfer  of  an  interest  in  lands,  456. 

not  to  be  performed  within  one  year,  457. 
perpetuation  of,  460. 

form  of  petition  to,  460. 

of  the  order,  461. 

proceedings  when  personal  notice  can  not  bs  given,  4G2. 

who  may  take  deposition  to  perpetuate,  463. 

approval  of  such  depositions,  464. 
interrogatories  attached  to  pleadings,  465. 

time  of  answering,  466. 

affidavits  to,  467,  469. 

failing  to  answer,  effect  of,  468. 

compelling  answers  to,  470. 
introduction  of,  503. 

discretion  of  court  as  to  order  of,  503,  520. 
of  impeachment  of  witnesses,  508. 
of  privileged  communications,  509. 
tending  to  criminate  a  witness,  510. 
of  husband  and  wife,  511. 
of  defendants  in  criminal  cases,  513. 
of  taking  depositions  conditionally,  514. 
exhibition  of  wounds  to  jury,  518. 
photographs  as,  519. 

order  of  admission  of,  in  discretion  of  court,  520,  521. 
leading  questions,  what  are,  when  may  be  asked,  522. 
rebutting,  confined  to  the  issues,  524. 
objection  to,  525. 

of  parts  of  acts,  declarations,  etc.,  526. 
admission  of  after  case  is  closed,  528. 
relevancy  of,  529. 

best  evidence  must  be  produced,  530. 
foundation  for  secondary,  how  laid,  530. 
hearsay,  when  admissible,  531. 

admissions  of  parties,  when,  531. 

statements  as  to  cause  of  injury,  531. 
opinions  and  conclusions,  when  admissible,  532. 
expert,   when   admissible,   533. 

qualification  of  experts,  534. 

may  be  introduced  before  final  submission  of  cause,  561. 
how  made  part  of  record  on  appeal.  589,  593,  588. 
certificate  of  judge  to,  on  appeal.  589.  596. 

See  Exceptions  and  Bills  of  Exceptions, 
verdict  not  sustained  by.  new  trial.  614. 
newly  discovered  ground  for  new  trial,  616. 


INDEX.  719 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

EVIDENCE  (continued)— 

in  actions  against  railroads  for  damages  by  fire,  884. 

for  damages  to  stock,  893. 
in  actions  of  replevin,  906. 
in  cases  of  contempt,  1000. 
preservation  of,  999. 

See  Partition;    see  Action  of  Right;    see  Appeals. 
EXAMINATION— 

of  affiants  on  application  for  change  of  venue,  129. 

of  witness,  order  for,  wlien  made,  461. 

of  witnesses  on  a  trial,  520,  521  to  523,  527,  528. 

See  Witnesses. 

of  defendant  in  attachment  cases,  736. 

of  judgment  debtor;  see  Auxiliary  Proceedings;    see  lleplevin. 
EXCEPTIONS— See  Bills  of  Exceptions. 

statutory,  to  right  of  joinder  of  actions,  199. 

to  depositions,  when  and  how  taken,  397. 

to  depositions  for  incompetency  and  irrelevancy,  398. 

when  decided,  401. 

to  instructions,  when  and  how  taken,  543. 
what  is,  588. 
when   sufficient,    597. 
when  must  be  taken,  599. 

See  Instructions;    see  Evidence. 

EXCESSIVE  DAMAGES— 

ground  of  new  trial,  612. 
EXECUTION— 

judgment  when  special  is  asked,  634. 

garnishee's  showing  cause  against  the  issuance  of,  780. 

when  it  may  issue,  792. 

when  issued  on  a  judgment  of  Superior  Court,  792. 

what  judgments  and  orders  are  enforceable  by,  793. 

into  what  counties  the  writ  may  run,  794. 

when  issued  on  Sunday,  795. 

form  of  affidavit  for  issuance  on  Sunday,  795. 
issuance  of  the  writ,  duty  of  clerk,  796. 
requisites  of  the  writ,  797. 

form  of  for  money,  797. 

proceedings  when  writ  is  issued  to  another  county,  798. 
form  of  for  delivery  of  specific  chattels,  799. 

on  transcript  of  judgment  from  a  justice,  799. 
when  stay  of  allowed,  800. 

extent  of  stay,  800. 

of  debts  contracted  prior  to  September  1,  1873,  801. 
stay  bonds  and  their  approval,  802. 

form   of,   802. 

justification  by  surety  on,  802. 

effect  of  after  execution  has  been  issued,  803. 

sureties  preventing  or  determining  the  stay  of,  804. 
sheriff's  duty  on  receiving  execution,  805. 

against  principal  and  surety,  how  levied,  806. 
levy  of  generally,  807. 

when  sheriff  dies  before  return  of  the  writ,  808. 

how  made,  809. 

judgments,  bank  bills,  etc.,  how  leyied  on,  810. 

proceedings  by  garnishment,  811. 
See  Garnishment;    see  Garnishee. 

on  mortgaged  chattels,  812. 


720  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

EXECUTION  (continued)— 

on  partnership  property,  how  made,  813. 
how  writ  against  a  municipal  corporation  executed,  814. 
debtor  may  pay  sheriff,  816. 

stock  interests  of  a  corporation,  how  levied  on,  815. 
effect  of  levy,  surplus,  etc.,  817. 
indemnity  bond,  when  may  be  demanded,  818. 
its  terms  and  conditions,  820. 
form  of,  820. 
form  of  approval  of,  820. 
notice  of  ownership  of  property,  818. 

form  of,  818. 

levy  discharged,   when,  819. 
application  of  proceeds  of  sale,  821. 

See  Exemptions;    see  Auxiliary  Proceedings, 
in  case  of  replevin,  909. 

form  of,   909. 
in  case  of  foreclosure  of  real  estate  mortgage,  1150. 

form  of,  1150. 
return  of  sheriff  on,  form  of,  1269. 

form  of  when  equity  of  redemption  is  sold,  12C9. 
form  of  statement  attached  to.  1269. 
in  cases  of  forcible  entry  and  detainer,  1420. 

form  of,  1420. 

may  issue  against  surviving  defendants,  1274. 
when  may   be  quashed,  1275. 

See  Appeals;     see  Sheriff's  Sale;    see  Appraisement;     see 
Redemption;     see    Foreclosure    of    Mortgages;     see    Me- 
chanics' Liens  and  Claims;    see  Supreme  Court. 
EXECUTOR  FOREIGN— 

when  he  can  sue  in  this  State,  63. 
EXECUTOR  AND  ADMINISTRATOR— 
may  sue  in  their  name,  62,  220. 
cases  in  which  they  may  sue,  62. 
when  they  can  sell  real  estate,  62. 
form  of  caption  to  petition  by,  220. 
may  sue  in  representative  capacity,  220. 
form  of  petition  by  one  administrator  against  another,  "59. 
judgment  against,  how  rendered,  680. 

proceedings  to  subject  real  estate  to  payment  of  judgment  against, 
1291. 

See  Foreclosure  of  Mortgages;    see  Parties;     see  Actions; 

see  Sheriff's  Sale;  see  Plaintiffs. 
EXEMPLARY  DAMAGES— 
what  are,  748. 
in  attachment  suits,  748 

EXEMPLIFICATION  OF  JUDGMENTS— See  Authentication;    see  Evi- 
dence. 
EXEMPTION— 

from  service  as  a  juror,  496. 
causes  of,  496. 

what  property  exempt  from  execution,  822. 
of  personal  earnings,  823. 
of  pension  money.  824. 
of  insurance  money.  825. 
to  unmarried  persons.  82*>. 
to  head  of  the  family,  827. 
when  not  allowed,  828. 


INDEX.  721 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

EXEMPTION  (continued)— 

other  exemptions,  829. 

waiver  of  right  of  exemption,  830. 

securing   claims  of  laborers,   831. 

depriving  persons  of  the  benefit  of  exemptions,  832. 

exchange  of  exempt  property,  833. 

statute  as  to  does  not  apply  to  other  liens,  833 
to  be  liberally  construed,  834. 

relates  to  the  remedy,  834. 

of  homestead,  1051  to  1069. 
EXHIBITS— 

attached  to  depositions,  how,  384. 

to  petition  against  railway  company  for  killing  stock,  887. 

in  supreme  court,   return  of,   1400. 

See  Copy;    see  Petition;    see  Pleading. 
EXHIBITION— 

of  wounds  to  jury,  518. 
EXISTING   CREDITORS— 

when  chattel  mortgage  valid  as  to,  972. 
EXPERTS— 

opinions  of,  when  admissible,  532,  533. 

competency  of  as  witnesses,  533. 

qualifications  of,  534. 

FACTS— 

only  to  be  stated  in  pleadings,  206,  208,  224. 

material  facts  only  pleaded,  225. 

instructions  must  not  be  on,  546. 

form  of  finding  by  jury,  572. 

finding  of  by  court,  575. 

unnecessarily  stated,  need  not  be  proved,  212. 

See  Demurrer;    see  Pleading. 
FAMILY— 

head  of,  who  is  as  to  homestead,  1055. 

See  Exemptions;    see  Service. 
FEDERAL  COURTS— See  Conflict  between  Courts;    see  United  States 

Courts. 

FEE  BILL— See  Costs. 
FEES — See  Costs;  see  Attorneys  at  Law. 
FELONY— 

conviction  of  a  ground  of  divorce,  1012. 
FEME  COVERT— See  Husband  and  Wife. 
FEME  SOLE— See  Husband  and  Wife. 
FILING— 

of  pleading  by  the  clerk,  53. 

petition  must  be  filed,  252. 

effect  of  not  filing  by  time  fixed  in  notice,  252. 

not  filed  till  memorandum  is  made  in  appearance  docket,  252. 

demurrer,  274. 

answer,  279. 

application  for  continuance,  485. 

bills  of  exceptions,  599. 

papers  in  habeas  corpus  case,  1050. 

See  Appeals;    see  Reply;    see  Motion;    see  Transcript;    see 
Petition. 

of  sub-contractor's  claim  on  public  buildings  and  improvements, 
1120. 


722  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

FILING  (continued)— 

of  notice  of  appeal,  1323. 

of  the  abstract  on  appeal,  1338,  1386. 

of  claims  with  an  assignee,  934,  935. 
FINDING  OF  FACTS— 

by  the  court  when  necessary,  574,  575. 
FINES  AND  FORFEITURES— 

venue  in  actions  for,  101. 

actions  for,  by  whom  prosecuted,  875. 

judgment  for,  by  collusion,  no  bar,  875. 

petition  in  cases  of,  876. 
form  of,  876. 

to  what  county  fines  belong,  877. 
paying  part  of  a  fine,  878. 

action  for  recovery  of  fine  paid,  879. 

may  be  several  actions  on  same  security,  872. 
FIRES— 

setting  out  by  railroads;    see  Railroads. 

FIXTURES— 

when  exempt  from  execution,  829. 
FORCIBLE  ENTRY  AND  DETAINER— 
jurisdiction  of,  1412. 
when  action  lies,  1413. 
parties  to,  62,  1414. 
of  notice  to  quit,  1415. 

form  of  notice,  1415. 
the  petition,  1416. 

form  of,  1416. 

service  of  notice,  etc.,  1417. 
trial,   1418. 

when  by  equitable  proceedings,  1418. 
action  barred,  when,  1419. 
the  judgment,  1420. 

form  of,  1420. 

FORECLOSURE  OF  MORTGAGES— 
defendants  in  cases  of,  81,  1145. 
venue  in  cases  of,  99. 
form  of  original  notice  in  action  of,  170. 
how  and  where  action  must  be  brought,  1144. 
of  election,  when  separate  suits  are  brought  on  note  and  mortgage 

1146. 
of  the  petition,  1147. 

form  of,  1147. 

form  of  prayer  when  notes  not  all  due,  1147. 

form  of  in  case  of  title  bond,  1147. 
of  the  judgment,  1148. 

form  of.  1148. 
attorney's  fees,  when  allowed,  1149. 

form  of  affidavit  for,  1149. 
of  the  execution,  1150. 

form  of,  1150. 

assignment  to  junior  encumbrances,  1151. 
surplus  arising  from  the  sale,  1152. 
of  other  liens,  1153. 
Bale,  and  satisfaction  of  the  mortgage,  1154. 

form  of  notice  to  mortgagee  to  cancel  mortgage,  1154. 
duty  of  the  clerk.  1155. 
of  title  bonds,  1156. 


INDEX.  723 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

FORECLOSURE  OF  MORTGAGES  (continued)— 

of  cancellation  of  real  estate  contracts,  1157. 

pleadings,  practice,   etc.,  1158. 

of  redemption,  1159. 

priority  of  liens,  1160. 

intervening  equities,  1160. 

indexing,  1160. 

release  and  merger,  1161. 

what  instruments  will  be  treated  as  mortgages  and  foreclosed, 
1144. 

when  no  personal  judgment  can  be  rendered,  1148. 

penalty  for  failing  to  satisfy  mortgage,  1154. 

sale  for   installment  due,   1158. 

See  Chattel  Mortgages;    see  Redemption. 
FOREIGN— 

judgment,  form  of  petition  on,  250. 

mortgages,  when  enforced  in  this  State,  974. 

See  Depositions;    see  Evidence. 
FOREMAN— 

verdict  of  jury  to  be  signed  by,  565. 
FORFEITURE— 

of   mechanic's   lien,    1134. 

See  Fines  and  Forfeitures. 

FORMS— 

used  in  taking  depositions,  385. 
of  judgments,  640,  648,  657,  672. 

See  Actions;    see  Pleading,  Petition,  Answer,  Reply. 

FRAUD— 

actions  for  injuries  on  ground  of,  limitation  of  actions,  146. 
how  pleaded,  213,  227. 
must  be  pleaded,  227. 

judgments  vacated  for,  1211;  see  Vacation  of  Judgments. 
FRAUDS— See  Statute  of  Frauds. 

FIRM— 

land  owned  by,  how  partitioned,  1181. 
GARNISHEE— 

notice  of  garnishment,  771. 

form  of,  771. 

must  take  oath  to  make  true  answers,  772. 

form  of  oatlTto,  772. 
form  of  questions  propounded  to,  772. 
answers   of,  772. 
when  to  appear  at  court,  773. 
f  proceedings  when  he  dies,  776. 
*      fees  and  mileage  of,  777. 

waiver  by  of  his  exemption,  778. 
penalty  for  failure  to  attend  and  answer,  779. 
must  be  served  with  notice  to  show  cause  why  an  execution  should 
not  issue  against  him,  780. 

form  of  notice,  780. 
may  move  to  set  aside  default,  780. 

form  of  such  motion,  780. 

form  of  showing  by  garnishee  to  set  aside  default,  etc.,  780. 
of  his  liability  for  costs,  781. 
of  his  exonerating  himself,  782. 
of  his  liability  for  interest,  783. 
position  of,  and  his  rights  generally,  784. 


IXDEX. 


Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

GARNISHEE  (continued)— 

s   controverting  his  answer,  and  of  trial,  785. 
when  judgment  will  be  rendered  against,  788. 

of  the  form  ot  the  judgment,  789. 
of  debts  due  by  negotiable  paper,  790. 
collusiveness  of  judgments  against,  791. 

See  Garnishment. 
GARNISHMENT— 

venue  in  proceedings  of,  103. 

attachment  by  garnishment,  how  effected,  771. 

sheriff  may  be  directed  to  take  answers,  771. 

form  of  such  direction,  771. 
who  may  be  garnished,  774. 
who  can  not  be  garnished,  775. 

municipal  corporations  can  not  be,  775. 
controverting  answer,  and  of  trial,  785. 
^  notice  to  the  principal  defendant,  783. 

how  served,  786. 

showing  exemption  of  property,  787. 
causes  in,  how  docketed,  791. 
practice  in  cases  of,  791. 

see  Garnishee. 

receiver  can  not  be  garnished,  1247. 
GENERAL— 

verdict,  568,  570. 
GENERAL  ASSEMBLY— 

members  of  need  not  appear  to  an  action  when,  255. 
contempts  of,  989. 
GENERAL  DENIAL—  See  Answer. 

GENERAL  RULES  OF  PRACTICE—  See  Rules  of  Practice. 
GOODS— 

form  of  petition  for  goods  sold,  250. 
GRANTEE— 

may  foreclose  title  bond;  see  Foreclosure  of  Mortgages. 
GROUNDS   OF  BELIEF—  See  Verification. 
GROWING  CROPS— 

respecting  levying  on,  809. 
GUARDIAN  AD  LITEM— 

appointed  fo  defend  for  minor,  82. 
appointed  to  defend  for  insane  person,  83. 
appointed  in  partition,  1185. 

form  of  order  of  appointment,  1185. 
form  of  answer,  1185. 
need  not  be  verified,  1185. 
GUARDIAN— 

may  sue  in  his  own  name,  62,  72,  220. 
may  sue  in  representative  capacity,  220. 
denials  in  answers  by,  284. 
form  of,  284. 

See  Infants;    see  Insane  Person. 
HABEAS  CORPUS— 

no  joinder  of  action  with,  199. 
when  the  writ  lies,  1031. 
when  it  does  not  lie,  1032. 
of  the  petition,  1033. 

must  be  sworn  to,  requisites  of,  1033. 


INDEX.  725 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

HABEAS'CORPUS  (continued) — 

form  of,  1033. 

to  whom  application  for  the  writ  must  be  made,  1034. 
reasons  for  refusal  of  must  be  stated,  1034. 
issuance  of,  1035. 
form  of,  1035. 

penalty  for  willfully  refusing  to  grant,  1035. 
notice  to  the  county  attorney,  1036. 

form  of,  1036. 
service  of  the  writ,  1037. 

when  officer  may  arrest  the  defendant,  1037. 
disobedience  of  the  writ,  1038. 

penalty  for  disobeying  it,  995,  1038. 
duties  of  the  officer,  1039. 
of  the  precept,  and  when  it  will  issue,  1040. 
form  of,  1040. 

form  of  when  defendant  is  to  be  arrested,  1040. 
how  it  is  served,  1041. 

of  presumptions;    appearance  of  the  parties,  1042. 
contempt  and  attachment,  1043. 

form  of  attachment  for  contempt,  1043. 
commitment  for  failure  to  comply  with  the  writ,  1044. 
form  of  warrant  of,  1044. 
service  of  the  attachment,  1045. 
answer  to  the  writ,  1046. 

form  of,  1046. 
pleas  to  the  answer,  1047. 
trial  and  judgment,  1048. 

plaintiff  may  waive  right  to  be  present,  1048. 
proceedings  in  for  custody  of  children,  1049. 
disobedience  of  order  of  discharge,  1050. 
filing  of  papers,  1050. 
HABITUAL  DRUNKENNESS— See  Divorce  and  Annulling  Marriages. 

a  ground  for  divorce,  1013. 
HANDWRITING— See   Evidence. 

HEAD  OF  FAMILY — See  Exemptions;    see  Homestead;    see  Family. 
HEARING— 

of  motions;  see  Appeals,  1165,  1301. 
HEARSAY— See  Evidence. 
HEIRS— 

judgments  against,  how  rendered,   680. 

See  Infants;    see  Guardian;    see  Guardian  ad  Litem. 
HIGHWAY— 

when  statute  of  limitations  runs  in  case  of,  149. 
fencing    by    railroads,    889. 
HISTORICAL  WORKS— 

admissible  in  evidence,  417. 
HOLIDAYS— 

parties  not  compelled  to  appear  in  court  on,  255. 
HOMESTEAD— 

when  it  is  exempt  from  judicial  sale,  1051. 
when  it  is  not  exempt,  1052 

of  debts  contracted  prior  to  its  purchase,  1053. 
when  may  be  sold  for  debts  created  by  written  contract,  1054. 
of  the  head  of  the  family,  1055. 
of  conveyance  of,  1056. 


726  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

HOMESTEAD  (continued)— 
of  incumbrance  of,  1056. 
of  sale  of  on  judgments  against,  1056. 
extent  of  the  homestead,   1057. 

may  consist  of  several  lots,  1058. 
what  it  embraces,  1059. 
selecting  and  platting  of,  1060. 

form  of  selection  and  plat,  1060. 
form  of  notice  to  plat  given  by  officer,  1060. 
effect  of  platting,  1060. 
form  of  application  of  creditor  to  fix,  1060. 
of  notice  of  hearing  the  application,  1060. 
form  of  judgment  establishing,  1060. 
changing  the  limits  of,  1061. 

effect  of  on  new  homestead,   1061. 
pleading  and  practice,  1062. 

dispute  as  to  what  constitutes,  how  determined,  1063. 
action  of  the  court,  1064. 
form  of  oath  to  referees,  1064. 
occupation  of,  by  survivor,  1065. 
election  of  homestead  in  lieu  of  dower,  1066. 
disposal   of,   1067. 
sale   or  devise   of,   1068. 
abandonment  of,  what  is,  1069. 

See  Partition. 
HUSBAND  AND  WIFE— 
as  witnesses,  511. 
mortgages  between,  when  valid,  962. 

See  Mechanics'  Liens, 
when  husband  abandons  family,  wife  may  sue  or  defend  in  his 

name,  71. 

husband  may  do  the  same  when  wife  has  abandoned  him,  71. 
may  sue  and  be  sued  in  her  own  name,  70. 
an  attachment  or  judgment  against  her  must  be  enforced  against 

her  alone,  70. 
may  sue  each  other,  70. 
IDENTITY— 

may  be  proved  by  opinions  of  witnesses,  532. 
IDIOT— See  Insane  Person. 
IMPEACHMENT— 

using  depositions  for,  399. 
of  witnesses,  how  done,  508. 
IMPERTINENT    MATTER— 

in  pleading,  struck  out,  242. 
IMPLIED  PROMISE— 

need  not  be  plead,  228. 

IMPOTENCY — See  Divorce,  Alimony  and  Annulling  Marriages. 
IMPROVEMENTS— 

lien  of  sub-contractor  on;    see  Mechanics'  Liens  and  Claims. 
INCUMBRANCES— 

how  ascertained  in  partition,  1188. 
INCUMBRANCERS— 

when  notice  given  to  in  partition,  1188. 

form  of  notice  to,  1188. 

of  proceedings  to  determine,  1188. 


INDEX.  727 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

INDEBTEDNESS— 

not  due,  attachment  for;    see  Attachment 

See  Redemption. 
INDEMNIFYING  BONDS— 

in  attachment  cases,  739. 

form  of,  739. 

in  case  of  executions,  820. 

form  of,   820. 
in  case  of  landlord's  attachment,  1105. 

form  of,  1105. 
INDEXING— 

judgments,  690. 
real  estate  mortgages,  1160. 
INDORSEE— 

form  of  petition  when  he  has  paid  note,  250. 
INFANTS— 

actions  by,  in  whose  name  brought,  72,  221. 
actions  against  must  be  defended  by  guardian,  82. 
original  notice,  how  served  on,  179. 
form  of  caption  for  petition  by  next  friend,  221. 
answer  for  in  partition  by  guardian  ad  litem,  1185. 

form  of,  1185. 
judgments  against  when  vacated,  1212,  1215. 

See  Pleading. 

INFORMATION  AND  BELIEF— See  Pleading;    see  Answer. 
INHABITANTS— 

change  of  venue  on  account  of  prejudice  of,  119. 
INHUMAN  TREATMENT— 

a  ground  for  a  divorce,  1014. 
INJUNCTIONS— 

venue  in  actions  to  enjoin  judgments,  111. 

amendments  in  cases  of,  1091. 

transfer  of  proceedings  to  foreclose  chattel  mortgages  to  district 

court  by,  984. 

violation  of  is  a  contempt,  994. 
object  and  purpose  of,  1070. 

granted  to  abate  nuisances  relating  to  manufacture  and  sale  of 
intoxicating  liquors,  1071. 
how  such  actions  should  be  brought,  1072. 
form  of  notice  of  hearing  of,  1073. 
statute    constitutional,    1073. 
when  granted  generally,  1074. 
when  will  be  refused,  1075. 
parties  to  the  action,  1076. 

manner  and  time  of  granting,  1077,  1078. 
rules  governing  the  granting  of,  powers  of  court,  1079. 
by  whom  and  when  temporary  will  be  granted,  1080. 

when  not  granted  without  notice,  1081. 

form  and  requisites  of  the  petition  to  abate  nuisance  in  sale  of 
liquor,  1082. 

form  of  to  restrain  judicial  sale,  1082. 
allowance   of  the  writ,  1083. 

form  of  notice  of  hearing  application  for,  1083. 
form  of  order  of,  1083. 
of   the   bond,   1084. 

form  of,  1084. 
action  on  bond,  1085. 


728  IXDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

INJUNCTIONS    (continued)— 
writ,  form  of,  1086. 
vacation  or  modification  of,   1087. 

form  of  motion  to,  1087. 
dissolution  of,  1088. 

form  of  motion,  1088. 
pleading  and  practice,  1089. 
violation  of,  how  punished,  1090. 

precept,  form  of,   1090. 
appearance,  bond  for,  form  of,  1090. 
warrant  of  commitment,  1090. 
when  landlord  may  have  against  his  tenant,  1097. 
will  issue  to  suspend  proceedings  on  motion  to  vacate  a  judg- 
ment, 1222. 
INJURIES— 

to  the  person,  limitation  of,  140. 
to  personal  property,  what  must  be  pleaded,  212. 
in  actions  of  torts  generally,  how  pleaded,  235. 
by  an  assault,  form  of  petition  for,  250. 

See  Pleading;    see  Petition. 
INSANE  PERSON— 

must  sue  by  guardian,  73. 
defended  by  guardian,  83. 
how  served  with  original  notice,  180. 
INSANITY— 

proved  by  opinion  of  experts,  532. 
INSTALLMENTS  OP  DEBT  DUE— 
sale  of  real  estate  for,  1158. 

see  Foreclosure  of  Mortgage. 
INSTRUCTIONS— 

to  officers  taking  depositions,  389. 
to  jury  asked  by  a  party,  540. 
must  be  in  writing,   540. 
can  not  be  orally  explained,  540. 
given  by  court  on  its  own  motion,  541. 
modification  of,  542. 
how  made,  542. 

must  be  on  matters  of  law,  546. 
reading  and  noting  exceptions,   543. 
must  be  filed,  543. 
need  be  given  but  once,  544. 
refused  when  not  pertinent  to  the  issue,  545. 
must  not  comment  on  the  evidence,  546. 
of  statement  of  the  issues,  547. 

must  not  refer  jury  to  pleadings  to  ascertain  the  issues,  547. 
taking  case  from  jury  by,  548. 

when  proper,  548. 
form  of,  549. 
construction   of,   550. 
what  questions  may  be  raised  by,  551. 
of  error  in,  without  prejudice,  551. 

with  prejudice,  553. 
of  curing  error  by,   554. 
further,  when  may  be  given,  562. 
duty  of  jury  to  follow.  563. 
exceptions  to,  when  and  how  taken,  601. 
INSTRUMENTS— 

inspection  of  by  supreme  court;    see  Appeals. 


INDEX.  729 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

INSURANCE  COMPANIES— 

venue  in  actions  against,  107. 
form  of  petition  on  policy  of,  250. 
form  of  reply  to  answer  to  petition  on  policy,  324. 
form  of  answer  to  action  on  policy,  313. 
INTERCHANGE  OF  JUDGES— 

of  district  court,  24. 
INTEREST— 

when  garnishee  chargeable  with,  783. 
INTERROGATORIES— 
to  depositions,  375. 
cross  to,  376. 

annexed  to  pleadings  when,  465. 
time  of  answering,  466. 
affidavits  to,  467,  469. 
failing  to  answer,  effect  of,  468. 
compelling  answers  to,  470. 
submitting  to  jury,  569. 

form  of,  572. 

special  submitted  to  jury  in  actions  for  wrongful  suing  out  of  at- 
tachment, 747. 
form  of,  747. 

failure  to  answer  is  a  contempt,  990. 
INTERVENING— 

equities,  1160. 

INTERVENOR— See  Intervention. 
INTERVENTION— 

who  may  intervene,  and  when,  326. 

of  the  interest  necessary  to  intervene,  327. 

must  not  delay  main  action,  328. 

pending  application,  applicant  can  not  have  a  change  of  venue, 

328. 
must  be  by  petition,  329. 

set  out  facts  on  which  it  is  based,  329. 
governed  by  rules  applicable  to  other  pleadings,  329. 
form  of  petition  in,  331. 
petition  for,  may  be  dismissed  before  final  submission  of  cause, 

331. 

conclusiveness  of  judgments  in  cases  of,  330. 
form  of  verdict  in  case  of,  572. 
by  a  third  party  claiming  attached  property,  767. 
who  may  intervene,  and  when,  J67. 

INTOXICATION— See  Divorce,  Alimony  and  Annulling  Marriages. 
INTOXICATING  LIQUORS— 

limitation  of  actions  for  damages  from  sale  of,  141. 
use  of  by  jury,  610. 

injunctions  granted  to  restrain  sale  of,  1071. 
how  such  actions  should  be  brought,  1072. 
of  the  application,  1073. 
form  of  notice  of,  1073. 
form  of  petition  in,  1082. 

INTRODUCTION  OP  EVIDENCE— See  Evidence. 
INVESTMENT— 

of  proceeds  of  sale  in  partition,  1204. 
IRRELEVANT  MATTER— 

stricken  out  of  pleadings  on  motion,  242. 
form  of  such  motion,  242. 


730  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ISSUES— 

object  of  pleading  is  to  form,  205. 

what  are,  205,   471. 

what  put  in  by  denial,  283. 

when  issue  of  fact  arises,  472. 

equitable,  how  tried,  473. 

equitable  in  law  action  how  tried,  474. 

order  of  trial  of,  474,  475. 

instructions  not  pertinent  to  refused,  545. 

statement   of   in   instructions,    547. 

ITEMS  OF  ACCOUNT— See  Copy. 
JOINDER  IN   DEMURRER— 

not  necessary,  275. 
JOINDER  OF  ACTIONS— 

what  causes  may  be  joined  generally,  193,  194. 

must  be  by  same  parties,  against  same  parties,  in  same  rights. 

194.  197. 

venue  as  to  all  must  be  in  same  county,  194,  198. 
law  and  equity  can  not  be,  194. 
when  causes  of  action  can  not  be,  195. 
what  is  an  entire  cause  of  action,  196. 
party  need  not  join  several  distinct  causes  of  action,  193. 
statute  prohibits  joinder  in  partition,  199. 
in  divorce,  199. 

quo  warranfo,  foreclosure  of  mechanic's  lien,  replevin,  199. 
in  actions  to  recover  real  property,  199. 
causes  improperly  joined  may  be  stricken  out,  200. 

form  of  motion  to  strike  out,  200. 
of  waiver  of  misjoinder,  201. 
when  separate  petitions  may  be  filed,  202. 
JOINDER  OF  PARTIES— 

when  plaintiffs  may  be  joined,  74,  75,  76. 
when  they  can  not  be  joined,  77. 
of  defendants,  when  proper,  85. 

in  actions  for  sale  of  intoxicating  liquor,  86. 

in  actions  ex  delicto,  87. 

in  actions  for  conversion,  88. 

See  One  Suing  for  All;    see  Appeal. 
JOINT  WRONGDOER—  i 

effect  of  release  of,  89. 

JOINT  AND  SEVERAL— See  Joinder  of  Parties. 
JUDGES— 

of  supreme  court,  election  and  term,  division  of,  17,  1380. 

failure  to  attend,  20. 

powers  of;    see  Supreme  Court. 

of  district  court;  see  District  Court. 

may  interchange,  24. 
venue  of  a  cause  may  be  changed  when  judge  is  a  party,  118. 

also  on  account  of  prejudice  of  judge,  119. 
must  make  certificate  as  to  jury  fees,  when,  133. 
absence  of  from  court  room  during  argument,  507. 
may  be  witnesses,  517. 

See  Supreme    Court;     see    District   Court;     see    Superior 

Court, 
certificate  to  shorthand  report,  589. 

form  of,  589. 
form  of  order  on  clerk  to  certify  records,  1327. 


INDEX.  •       731 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

JUDGE'S  ORDERS— 

may  in  vacation  punish  a  contempt,  1002. 
JUDGMENT— 

what  is,   628;     see  Limitation  of  Actions. 

record,  entry  of,  50. 

when   rendered  in  vacation,   30,   678. 

entered  on  verdict  after  close  of  term,  30,  678. 
assignee  of  may  sue  on,  59. 
actions  to  enjoin,  where  brought,  111. 
when    barred,    150. 
of  claim  for  in  original  notice,  168. 
personal  can  not  be  rendered  on  personal  service  made  outside 

the  State,  191. 

what  must  be  stated  in  pleading,  238. 
demand  for  in  petition,  244. 

forms  of,  244. 
prayer  for  in  equity  cases,  245. 

form  of,  245. 

demand  for  when  there  are  several  counts,  246. 
form  of  petition  in  action  on,  250. 

on   a  foreign  judgment,  250. 
of  denials,  when  judgment  is  pleaded,  290. 
conclusiveness  of  in  cases  of  intervention,  330. 
what  adjudications  are  not,  629. 
when  invalid,  630. 

may  be  for  or  against  same  party,  631. 
when  matter  in  abatement  is  pleaded,  632. 
when  defendants  not  all  served,  633. 
on  attachment  bond  when  set  off,  633. 
when  special  execution  is  asked,  634. 
extent  of  relief  granted  in,  635. 
for  excess  of  counter  claim,   636. 
on  special   verdict,   637. 
on  verdict,  638. 

form  of,  638.  4 

notwithstanding  verdict,  639. 

when  should  be  entered,  640. 
by  agreement,   641. 
duty  of  clerk  with  reference  to,  642. 
discharge  of,   643. 
of  record  entries,  644. 

caption  to,  in  supreme  court,  644. 
in  district  court,   644 

reading  record  of,   645. 

amending  record  of,  645. 

signing  of,  by  judge,  645. 
setting   aside   an    assignment,    646. 
of  dismissal,  when  entered,  647,  648. 
directing  a  verdict,  etc.,  648. 
form  of  entry  of  dismissal,  648. 

entry  of  dismissal  in  case  tried  to  court  or  jury,  648. 

entry  of  dismissal  by  court,  648. 
adjudication  of  counter  claim,  649. 
dismissing  cause  in  vacation,  650. 
effect  of  judgment  of  dismissal,  651. 
by   default,  652. 

when   entered,   652. 

disposition  of  answer,   653. 

assessment  of  damages  in  case  of,  654. 


732  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

JUDGMENT  (continued)— 

what   it    admits,    654. 
assessment   of   damages    generally,    655. 
on  demurrer,   656. 
forms  of,  657. 

on  default,  657. 

on  default  where  damages  are  assessed  by  jury,  657. 

of,  on  demurrer,   657. 

presumptions  in  favor  of  conclusiveness  of,  658. 
when  service  is  ma'de  by  publication,  659. 

form  of  bond  to  abide  order  of  court,  659. 
on  default,  setting  aside,  660. 

setting  aside  in  supreme  court,  661. 

setting  aside  when  notice  by  publication,  662. 
effect  on  property  sold  under,  when  re-trial  is  had,  663. 
when  personal  can  not  be  rendered,  664. 
by  confession,  when  may  be  entered,  665. 

requisites  of,  665. 

by  a  partner,  not  binding  on  firm,  666. 

matters  not  avoiding  a  judgment  confessed,  607. 

appeals  from,  668. 

form  of  statement  for,  669. 

action  of  clerk  in  cases  of,  670. 

form  of  judgment  on,   670. 
offer  to  confess  before  action,  671. 

after  action  is  brought,  672. 

form  of,  672. 
offer  to  compromise  by  allowing  judgment  to  be  taken,  673. 

form   of,   673. 

form  of  acceptance  of  offer,  673. 

form  of  affidavit  of  notice  of  acceptance,  673. 
conditional  offer  to  confess,  674. 
in  controversy,  submitted  without  action,  675. 

pending  action,  676. 

agreement   of  parties,  677. 

form  of  agreement  of  submission,  677. 

form  of  affidavit  to  same,  677. 
time  of  rendering,   678. 
in  case  of  contested  elections,  679. 
how  rendered  against  heirs,  devisees,  etc.,  680. 
against  railroads,   681. 

attorney's  fees   in   cases   of,   681. 
•when  liens,   682. 

lien  attaches  in  a  county  other  than  the  one  in  which  judg- 
ment is  rendered,  683. 

priority  of,  684. 
contribution  of  property  sold  to  third  persons  to  pay  prior  incum- 

brances,  685. 

on  notes  secured  by  mortgage,  686. 
continuance  of  lien,  revivor  of,  687. 
liens  of,  superior  courts,  6S8. 

of  United   States  courts,  682. 
Indexing,  notice,  690. 
construction  of  records  in  case  of.  691. 
revivor  of,  687. 

on  bond  given  for  security  for  costs  when  rendered,  699. 
must  be  before  costs  can  be  recovered,  706. 
for  defendant  dissolves  an  attachment,  742. 


INDEX.  733 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

JUDGMENT  (continued)— 

when  it  will  be  rendered  against  a  garnishee,  788. 
of  the  form  of,   789. 

conclusiveness  of  against  a  garnishee,  791. 

what  enforcible  by  execution,  793. 

form  of  in  actions  of  right,  861. 

requisites   of   in    replevin,   908. 

disobedience  of  is  a  contempt,  991. 

lien  of  for  alimony,  1026. 

in  habeas  corpus  case,  1048. 

against  the  homestead,  1056. 

in  actions  enforcing  mechanics'  liens,  1138. 

in  actions  of  foreclosure  of  real  estate  mortgages,  1148. 
form  of  and  of  decree,  1148. 

in  partition,  1189. 

form  of  and  of  decree,  1189. 
See  Vacation  of  Judgments.  T 

in  actions  of  quo  warranto,  requisites  of,  1230. 

satisfying  against  an  executor  or  decedent,  1291. 

mutual,  when  set-off  against  each  other,  1292. 

in  an  action  of  waste,  1310. 

in  case  of  forcible  entry  and  detainer,  1420. 

on  appeal  in  supreme  court;    see  Appeal. 
JUDICIAL  DISTRICTS— 

counties  constituting,  23. 

number  of  judges  in  each,  23. 
JUDICIAL  NOTICE— 

matters  of  need  not  be  plead,  226. 

matters  of  which  such  notice  is  taken,   226. 
JUDICIAL    RECORDS— See    Records. 
JUDICIAL   SALE— 

form  of  petition  to  restrain,  1082. 
JURISDICTION— 

when  concurrent,   8,  1412. 

of  supreme  court;    see  Supreme  Court. 

of  district  court;    see  District  Court. 

of  superior  court;    see  Superior  Court. 

court  has  none  in  a  cause  after  venue  is  changed,  134. 

that  court  has  none,  cause  of  demurrer,  259. 

in  actions  for  divorce,  to  annul  marriages  and  for  alimony,  1008. 

see  Presumptions;     see   Courts. 
JURORS— See  Jury. 
JURY— 

change  of  venue  when  jury  can  not  be  obtained,  121. 

jury  fees  in  case  of  change  of  venue  to  be  certified,  133. 

challenge  to  the  panel  of,  491. 
to  individual,   492. 
cause  of  challenge  to,  493. 
trial  of  challenges  to,  494. 

talesman  as,  495. 

exempt  from  serving  on,  who  are,  496. 

number  of  to  be  summoned,  497. 

to  appear,  when,  497. 

failing  to  appear,  497. 

filling  up  number  of,  498. 

re-summoning  of,    498. 

of  a  majority  verdict,  499. 


734  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

JURY  (continued)— 

struck  jury,  how  obtained,  500. 
oath  to,  to  answer  questions  as  to  competency,  501. 
form   of,  501. 

form  of  affirmation  of,  501. 
oath  to  try  the  cause,  501. 

in  case  of  assessment  of  damages,  501. 
case  may  be  taken  from,  when,  548. 

See  Instructions, 
of  views  by,  555. 
submission  of  the  cause  to,  556. 
separation  of  allowed  by  court,  557. 
admonition  to  be  given  by  the  court,  557. 
discharged,   when,   558. 

when  cause  is  continued,  559. 
what  they  may  take  with  them  to  jury  room,  560. 
of  giving  further  instructions,  562. 
must  follow  instructions,  563. 
manner  of  finding  verdict,  564. 
of   polling   the,    566. 
may  find  general  or  special  verdict,  568. 
must  answer  interrogatories,   569. 
assessment  of  damages  by,  571. 
forms  of  verdicts  of,  572. 
when  kept  at  expense  of  county,  573. 
trial  by,  may  be  waived,  574. 

summons  to  in  case  of  attachment  of  perishable  property,  form 
of,  763. 

See  Trial;    see  Challenge. 
JURY  TRIAL— See  Jury;    see  Trial. 
JUSTIFICATION— 

of  sureties,  727,  802. 
form  of,  727,  802. 
KEEPING  ATTACHED   PROPERTY— 

expense  of,  how  paid,  766. 
KEEPING  JURY— 

at  county  expense,  573. 
KNOWLEDGE   AND   INFORMATION— 
denials   of,   285. 
form  of,  285. 

laborers  and  servants,  claim  of,  when  preferred,  1245. 
LANDLORD'S  LIEN— 

when,  and  to  what  the  lien  attaches,  1092. 

when  he  has  no  lien,  1093. 

priority  of,  1094. 

when  lien  attaches,  and  its  continuance,  1095. 

waiver  or  loss  of,  1096. 
of  injunctions  against  tenants,   1097. 
proceedings  against  third  persons  to  recover  for  property  sold 

them  by  tenant,   etc.,  1098. 
cases  when  the  landlord  may  assert  his  lien,  1099. 

of  the  remedy,  1100. 
payments  by  the  mortgagee  of  rent,  1101. 
enforcement  of  the  lien,  1102. 
form  of  petition  for  landlord's  attachment,  1103. 
form  of  affidavit  to  petition.  1103. 
form  of  the  attachment,  1104. 


INDEX.  735 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

LANDLORD'S  LIEN  (continued)— 

levy  of  the  writ,  1105. 

form  of  indemnifying  bond  to  sheriff,  1105. 
form  of  approval  by  sheriff,  1105. 

pleading,  etc.,  1106. 
LANDS— 

action  to  recover  venue  of,  98. 

action  for  injuries  to,  98. 

contracts  for  creation  or  transfer  of  an  interest  in,  456. 

how  attached,  734. 

See  Partition;    see  Action  of  Right;     see  Quieting  Title; 

see   Foreclosure   of  Mortgages. 
LAND   OFFICER— 

certificate  and  receipt  of,  when  evidence,  407. 
LAW— 

actions  at;    see  Actions;    Ordinary  Proceedings. 
LAW  AND   EQUITY— See   Supreme   Court;     see  District   Court;     see 

Jurisdiction;    see  Actions. 
LEADING    QUESTIONS— 

what  are,  when  may  be  asked,  522. 
LEASEHOLD   INTEREST— 

sale  of  an  execution,  1293. 
LEGAL  CONCLUSION— 

may  be  stricken  from  pleading  on  motion,  210. 
LEGAL   TITLE— 

pleading  equitable  defenses  to,  309. 
LEGISLATURE— 

proceedings  of,  how  proved,  413. 

LEGITIMACY    OF    CHILDREN— See    Divorce,    Alimony    and    Annul- 
ling Marriages. 
LEVY — See  Attachment;    Garnishment;    Execution. 

on  mortgaged  personal  property,  986. 
LIBEL — See  Slander. 

petition  in  action  of,  what  it  must  state,  236. 

when  special   damages   must  be  alleged,   236. 

what  words  actionable  per  se,  236. 

malice  not  presumed  from  failure  to  prove  justification,  236. 

LIEN— 

judgments,  when  are,  682. 

does  not  attach  to  homestead,  682. 

when  judgment  attaches  as  a  lien  in  another  county,  683. 

priority  of,  684. 

when  liens  are  of  same  date,  684. 

as  to  unrecorded  deed  or  mortgage,  684. 

on  note  secured  by  mortgage,  686. 
continuance  of,  687. 
revival  of,  687. 

of  judgments  of  superior  courts,  688. 
indexing  judgments,   690. 
of   an   attachment,   737. 

priority  of,  738. 

on  property  of  judgment  debtor,  how  obtained,  819. 
of  chattel  mortgage. 
of  landlord,  1092. 

when  he  has  no,  1093. 


736  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

LIEN  (continued) — 

priority  of,  1094. 

when  it  attaches,  its  continuance,  1095. 
waiver  or  loss  of,  1096. 
enforcement   of,   1099,   1102. 

on  public  buildings  and  improvements,  1118  to  1120. 
mechanic's,   1122   to  1143. 

right  to,  denied  when,  1123,  1124  and  1126. 

extent  of,  1127. 

priority  of,  1128. 

when  it  attaches,  1129. 

how  preserved,  1130. 

how  enforced,  1132. 

when  forfeited,  1134. 

pleadings  and  practice  in  cases  of,  1135. 

satisfaction  of,   1136. 

form  of,  1136. 

of  sub-contractor,  how  preserved  and  how  discharged,  1141. 
form  of  bond  to  discharge,    1141. 

extent  of  sub-contractors,  when  filed  after  thirty  days,  1143. 
in  case  of  real  estate  mortgages,  1153. 
priority  of,  1160. 
See    Transcript;     see    Judgment;     see    Attachment;     see 

Landlord;    see  Mechanic's  Lien;    see  Appeals. 
LIMITATION   OF   ACTIONS— 

construction  of  statute,  136. 
statutes  of,  constitutional,  136. 
relate  to  the  remedy,   136. 
apply  to  actions  at  law  and  in  equity,  137. 
to  municipal  corporations,   137. 
to  counties,   137. 

to  actions  in  name  of  State  for  use  of  others,  137. 
to  bodies  politic  and  corporate,  when,  137. 
power  of  legislature  to  change  statute,  effect  of  repeal,  138. 
sureties,  effect  of  statute  as  to,  139. 

actions  against  municipal  corporations,  when  barred,  140. 
actions  barred  in  one  year,  140. 
barred  in  two  years,  141. 
statute  penalty,  142. 
mechanics'  liens,  143,  1139. 
barred  in  three  years,  144. 
barred  in  five  years,  145. 

actions  for  injuries  to  property  or  relief  on  the  ground  of 

fraud,  etc.,  146. 
barred  in  ten  years,  147. 

those  founded  on  written  contracts,  147. 
on  judgments,  148. 

for  the  recovery  of  real  property,  149. 
barred  in  twenty  years,  150. 

when  the  statutory  period  begins  to  run  generally,  151. 
in  actions  by  partners,  151. 
in  action  by  sureties,   151. 

on  an  unwritten  contract,  151. 

against  a  sheriff  or  public  officer,  151. 

in  cases  of  express  trusts,   151. 

for  nuisance,  151. 

on  judgments,  150. 

to  recover  real  property,  149. 

of  mandamus,  144. 


INDEX.  737 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

LIMITATION  OF  ACTIONS   (continued)— 
for  fraud  and  mistake,  152. 
for    torts,    141. 
for  personal  injuries,  141. 
to  enforce  mechanics'  liens,  143. 
of  slander  and  libel,  143. 
on   unwritten  contracts,   145. 
for  injuries  to  property  on  ground  of  fraud,  146. 
to  recover  dower,   149. 
regarding  highways,    149. 
to   redeem,   149. 
on  book  accounts,  154. 

of  extension  of  time  of,  disability  of  plaintiff,  155. 
in  case  of  minors,  155. 
in  case  of  insane  persons,  155. 
when  the  bar  complete  as  to  non-residents,  156. 
when  complete  as  to  contracts  made  in  another  State,  156. 
evidence    of    non-residence,    157. 
of  actions  barred  by  laws  of  another  State,  158. 
of  extension  of  time  by  death,  159. 
by  failure  of  suit,  159. 
when  party  is  enjoined  or  prohibited  from  bringing  suit,  139, 

159. 
of  the  removal  of  the  bar  of  the  statute,  160 

new  promise  or  admisison  must  be  in  writing,  160. 
of  recitals  in  mortgages,  160. 
partial  payments  will  not  prevent  bar,  160. 
indulgence  will   not  prevent   bar,   160. 
when  debt  revived,  statute  begins  to  run  anew,  160. 
what  is  deemed  the  commencement  of  the  action,  161. 

effect  of  filing  amendment,  162. 
counter  claim  when  not  barred,  163. 
when  defense  of  statute  must  be  pleaded,  164. 

how  pleaded,  162,  164. 

when  defense  of  statute  should  be  raised  by  demurrer,  165,  268. 
when  defense  of  statute  is  waived,  164. 
of  pleading  matters  removing  the  bar,  166. 
answers  pleading  statute  of,  313. 

in  action  of  right,  for  use  and  occupation  of  premises,  862. 
in  proceedings  for  certiorari,  953. 
LIS  PENDENS— See  Demurrer. 

in  action  of  right,   869. 
LITIGATION— 

appointment  of  receiver  pending;    see  Receivers. 
LIVE  STOCK— See  Stock. 
LOST  PLEADING— 

when   substituted,   356. 
LOST    RECORD,    691. 

LUNACY — See  Divorce,  Alimony  and  Annulling  Marriages. 
LUNATIC— See  Insane  Person. 
MACHINERY— 

how  partitioned,  1179. 
MAILING — 

notice  of  receipt  of  depositions  by  clerk;  see  Depositions. 
MALICE— 

not  presumed  from  failure  to  prove  justification,  236. 
when  it  must  be  pleaded  generally,  241. 
47 


738  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II.  Sections  771  to  1420. 

MALPRACTICE— 

form  of  petition  for,  250. 
MANDAMUS— 

jurisdiction  in  case  of,  54. 
action  for,  when  barred,  144. 
when  actions  joined  with,  199,  1113. 
object  and  purpose  of  the  order,  1107. 
by  whom  issued,  1108. 

not  issued  to  control  discretion,  1109. 
when  the  order  will  issue,  1110. 

will  be  refused,  1111. 

on  whose  petition  it  will  be  granted,  1112. 
of  the  petition,  requisites  of,  1114. 

forms  of,  1114. 
of  practice,  tll!5. 
of  the  order,  its  requisites,  1116. 

form  of,  1116. 
powers  of  the  court,  1117. 
MAPS— 

admitted  in  evidence,  when,  417. 
MARRIAGE— 

action  for  breach  of  promise  of,  petition  in,  250. 
record  of,  admissible  in  evidence,  420. 
contracts  in  consideration  of,  454. 

See  Divorce,  Alimony  and  Annulling  Marriages. 
MARRIED  WOMEN— 
actions  by,  70. 

actions  against,  how  brought,  79. 
may  sue  for  her  earnings,  70. 
may  sue  her  husband,  when,  70. 
may  sue  without  joining  her  husband,  70. 
can  own  and  convey  lands,  70. 
MATERIAL  ALLEGATIONS— 
only  need  be  stated,  225. 

MATERIALS  FURNISHED— See  Mechanics'  Liens  and  Claims. 
MEASURE   OF  DAMAGES— See  Damages. 
MECHANICS'   LIENS— 

venue  in  foreclosure  of,  99. 

limitation  of  actions  to  foreclose,  143,  1139. 

no  action  can  be  joined  with  action  to  enforce,  199. 

when  it  lies,  1122,  1121. 

when  none  allowed,  1123,  1124. 

of  the  contract,  1125. 

extent  of  lien,  1127. 

by  the  husband,  lien  on  wife's  property,  1126. 
priority  of,  1128. 

when  it  attaches,  its  continuance,  1129. 
how  preserved,   1130. 

form  of  statement  of  account  for,  1130. 

form  of  affidavit  to,  1130. 

duties  of  the  clerk,  1131. 

enforcement   of,    1132. 

of  defendants  in,  1133. 
when  forfeited,  1134. 
pleadings  and  practice  in,  1135. 
satisfaction  of,  1136. 

form  of,  1136. 
petition  to  enforce,  1137. 


INDEX.  739 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

MECHANICS'  LIENS  (continued)— 
form  of,  1137. 

of    judgment,    1138. 

of  limitation  of  actions,  1139. 

sub-contractors,  who  are,  1140. 

how  lien  of  preserved  and  how  discharged,  1141. 
form  of  notice  of  filing  claim  of,  1141. 
form  of  bond  to  discharge  lien  of,  1141. 

payments  made  by  owner  to  contractor  within  the  thirty  days, 
1142. 

extent  of  lien  of  sub-contractor,  when  claim  is  filed  after  thirty 
days,   1143. 

redemption  from  sale  of  real  estate  by  holder  of,  1254. 
MEDICAL— 

works  admissible  in  evidence,  417. 
MERGER— 

when  it  will  not  take  place,  1161. 
MEMORANDA— See  Statute  of  Frauds. 
MILLS— 

how  partitioned,  1179. 
MINISTER — See  Ambassadors;    see  Consuls. 

of  the  gospel  excused  from  acting  as  juror,  496. 

not  to  reveal  confidential  communications,  509. 
MINERS— 

liens  for  opening,  developing  and  operating  coal  mines,  1121. 
MINORS— See  Infants. 
MISCONDUCT— 

of  attorneys  in  argument  ground  for  new  trial,  538. 

of  jury,  ground  for  new  trial,  607. 

of  successful  party  ground  for  new  trial,  607. 
MISFORTUNE— 

unavoidable,  judgment  vacated  in  cases  of,  1214. 
MISJOINDER— 

of  causes  of  action,  200. 

plaintiff  may  strike  out  cause  of  action,  200. 

court  may  strike  out  cause  of  action  on  motion  of  defendant,  200. 

form  of  motion  to  strike,  200. 

when  waived,  201. 

when  separate  petitions  filed,  202. 

of  parties,  263. 

not  ground  of  demurrer,  263. 
MISNOMER— 

in  attachment  bond  cured  by  filing  new  bond;  see  Attachment; 
see  Amendments. 

MISREPRESENTATIONS— See  Fraud. 
MISTAKE— 

statute  of  limitations  begins  to  run  in  cases  of,  152. 
See  Vacation  of  Judgments;    see  Equity;    see  Equity  Jurisdic- 
tion. 

MITIGATION— 

matter  in,  specially  pleaded,  299. 

when  matters  in  pleaded  as  a  partial  defense,  299. 

in  actions  of  slander  and  libel,  299. 
MODE— 

of  redemption,  1262. 


740  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

MODIFICATION— 

of  injunction,  1087. 
form  of  motion  for,  1087. 
of  judgments;    see. Vacation  of  Judgments, 
of  rules  of  supreme  court,  1398. 
MONEY— 

when  exempt  from  execution,  833. 

See  Attachment;    see  Execution;    see  Exemption. 
MONEY   JUDGMENT— See   Replevin. 
MORAL    CHARACTER— See    Impeachment. 
MORTGAGE— See  Foreclosure;    see  Chattel  Mortgage. 
MORTGAGEE— 

interest  in  chattel  property,  970. 
when  estopped  from  recovering  on  mortgage,  973. 
payment  of  rent  by,  1101. 
MORTGAGOR— 

retention  of  possession  of  personal  property  by  and  sale  by  him, 

958. 

interest  in  chattel  property  before  sale,  968. 
interest  in  chattel  property  after  sale,  969. 

See  Parties;    see  Foreclosure  of  Mortgages. 
MORTGAGED   CHATTELS— 

how  levied  on,  812. 
MORTGAGED  PROPERTY— 

appointment  of  receiver  in  cases  of,  1240. 
MOTION— 

for  change  of  venue,  112,  117,  118,  119,  121,  125. 
form  of  for  change  of  venue,  116  to  119,  121. 
to  strike  out  for  misjoinder,  200. 

form  of,  200. 

to  correct  error  in  form  of  proceedings,  11. 
evidence  in  pleading,  stricken  out  on,  209. 
irrelevant  or  redundant  matter  stricken  out  on,  209,  242. 
averments  of  law  when  stricken  out  on,  209. 
matter  not  constituting  a  defense  stricken  out  on,  209. 
form  of  motion  to  strike  out  irrelevant  matter,  242. 
for  more  specific  statement,  243. 

form    of,    243. 

when  motion  should  be  made  and  filed,  257 
objection  waived  by  demurring  or  answering.  257. 
must  be  in  writing,  257. 

and  specify  causes  on  which  they  are  founded,  257. 
motion  after  a  motion  not  allowed  to  same  pleading,  257. 
motion  in  arrest  of  judgment,  when  may  be  made  after  verdict 

and  before  judgment  is  entered,  257. 

assailing  pleadings  regulated  as  to  time  and  manner  of  filing  as 
demurrers,  257. 

suspends  necessity  for  further  pleadings  until  it  is  disposed 

of,  257. 

when  to  be  argued,  257. 
filing  in  clerk's  office  equivalent  to  filing  in  open  court,  when, 

257. 
to  strike  out  pleading  for  improper  verification,  338. 

form  of,  338. 

for  continuance,  481,  482,  483. 
decision  of,  484. 
motion  must  be  filed,  when,  485. 


INDEX.  741 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

MOTION   (continued)— 

amendment  of,  486. 
form  of,  489. 
form  of  affidavits,  489. 
practice  on,  490. 
for  new  trial  with  affidavits,  form  of,  623. 

without  affidavits,  form  of,  624. 
for  security  for  costs  when  may  be  made,  695,  696. 
form  of,  697. 

form  of  affidavit  to  accompany  motion,  607. 
form  of  counter  affidavit,  697. 
to   discharge    attachment,    form    of,    724. 
of  garnishee  to  set  aside  default,  780. 

form  of,  780. 

form  of  to  modify  an  injunction,  1087. 
form  of  to  dissolve  an  injunction,   1088. 
to  vacate  judgments,  1217. 
form  of  for  summary  proceedings,  1299. 
form  of  motion  when  the  action  is  against  an  officer  for  refusing 

to  pay  over,  1299. 

in  the  supreme  court,  when  filed  and  heard,  1347,  1389. 
MOTIONS  AND  ORDERS— 
what  is  a  motion,  1162. 
form  and  requisites  of,  1162. 
notice  of,  when  necessary,  1163. 

form  of,  1163. 
service  and  return  of,  1164. 
hearing  of  and  of  practice,  1165. 
what  is  an  order,  1166. 

when  they  may   issue,   1166. 
MUNICIPAL  CORPORATIONS— 

claims  against,   when  barred,  140. 
manner  of  service  of  original  notice  on,  177. 
powers  of,  relating  to  nuisances,  1172. 
MUTUAL    INSURANCE— 

form  of  petition  on  policy  of,  250. 
MUTUAL  JUDGMENTS— 

when  set  off,  1292. 
NAME— 

of  parties,  how  stated  in  petition,  218  to  221. 

where  name  not  known,  what  petition  must  show,  222. 

See  Pleadings;    see  Petition. 
NAMES  OF  PERSONS— See  Change  of  Name. 
NEGLIGENCE— 

contributory,  in  case  of  fires  set  by  railroads,  will  not  prevent 
recovery,  883. 

See  New  Trial;    see  Continuance. 
NEW  MATTER— 

as  a  defense,  what  is,  297. 

how  pleaded,  298. 

constituting  counter   claim,   301,   302. 

form  of  pleading,  313. 
NEW  PARTIES— 

.when  ordered  made,  90,  91,  92. 
to  counter  claim,  303. 


742  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

NEW  PROMISE— 

when  removes  bar  of  statute  of  limitations,  160. 
must  be  in  writing,  160. 
when  may  be  made,  160. 
not  implied  from  part  payment,  160. 
NEW  TRIAL— 

misconduct  of  attorney  in  argument  may  be  ground  for,  538,  607. 

what  is  a,  605. 

when  granted  for  irregularities  of  proceedings  of  the  court,  606. 

for  misconduct  of  jury,  607. 

for  misconduct  of  successful  party,   607. 

because  verdict  is  determined  by  chance,  608. 
affidavit  of  jurors,  when  received  to  avoid  verdict,  609. 

when  to  support  verdict,  609. 

effect  of  use  of  intoxicating  liquors  on  verdict,  610. 
granted  on  account  of  accident  or  surprise,  611. 
when  damages  are  excessive,   612. 
for   error  in  assessing   damages,    613. 
when  the  verdict  is  not  sustained  by  the  evidence.  614. 
of  setting  aside  verdicts  in  the  supreme  court,  615. 
when  verdict  is  contrary  to  law,   614. 
when  granted  on  the  ground  of  newly  discovered  evidence,  616. 

materiality  of  such  evidence,   617. 

showing  of  diligence  in  discovering  it,  618. 
other  cases,  when  granted,  619. 
•when  granted  in  equity,  after  a  judgment  at  law,  620. 

for  errors  of  law,  621. 

when  the  application  for  must  be  made,  622. 
,-when  application  for  must  be  supported  by  affidavits,  623. 
form  of  motion  for,  623. 
application  for  without  affidavits,  624. 

form   of.   624. 
conditional  order  for,  626. 
of   defective   pleadings,    625. 
pleading  and  practice  on,  627. 
costs   of,    627. 
in  actions  of  right,  when  granted,  867. 

See  Vacation  of  Judgments, 
when  motion  for  not  necessary  in  order  to  have  question  reviewed 

in  supreme  court,  1355. 
NEXT  FRIEND— 

infant  may  sue  by,  221. 

See  Infant.  -, 

NOMINAL  DAMAGES— 
what  are,  749. 
in  attachment  suits,  749. 
NON-JOINDER— 

form  of  answer  pleading,  313. 
NON  OBSTANTE  VERDICTO— 

when  it  may  be  rendered,   639. 
by  the  court,  or  on  motion  of  a  party,  639. 
NON-PAYMENT— 

of  damages,  when  should  be  pleaded. 

See  Pleading;    see  Attachment;    see  Petition. 

NON-RESIDENT— 

when  bar  of  statute  of  limitations  complete  as  to,  156. 
evidence  of,  157. 
burden  to  establish  on  party  alleging,  157. 


INDEX.  743 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

NON-RESIDENT    (continued)— 

will  not  necessarily  defeat  jurisdiction,  259. 

served  by  publication;     see  Publication. 

re-trial  when  judgment  rendered  against  one  served  by,  662. 

See  Attachment;     see  Exemptions. 
NOTARY  PUBLIC— 

may  take  depositions,  373. 
certificate  of,  when  admissible  in  evidence,  419. 
NOTES  AND  BILLS— See  Bills  and  Notes. 
NOTICE— See  Original  Notice. 

form  of  to  executor  to  revive  action,  96. 
of  taking  depositions,  368,  369,  371. 

service  and  return  of,  370. 

form  of,  371.      . 
of  taking  depositions  on  commission,  372,  374. 

service  of  and  form  of,  375. 
what  is  reasonable  of  taking  depositions,  369. 
of  filing  depositions,  395. 
to  produce  papers,  428. 

form  of,  428. 

of  taking  an  affidavit,  when  given,  433. 
indexing  judgment  constructive,   690. 
of  claim  of  ownership  of  attached  property,  739. 

form   of,   739. 

form  of  oath  to  notice,  739. 
to  defendant  of  examination  of  perishable  property,  763. 

form  of,  763. 

of  application  to  sell  perishable  property,  763. 
form  of  garnishment,  771. 

to  the  principal  defendant  in  a  garnishment  proceeding,  786. 
to  garhishee  to  show  cause  why  execution  should  not  issue,  780. 

form  of,  780. 
in  actions  to  quiet  title,  864. 

form  of,  864. 
of  the  pendency  of  an  action  affecting  real   estate  in  another 

county,  requisites  of,  869. 
to  railroad  company  of  killing  stock,  887. 

form  of,  887. 

requisites  of,  892. 
notice  of  hearing  by  arbitrators,  914. 

form  of,  914. 

form  of,  of  application  for  certiorari,  950. 
in  foreclosure  of  chattel  mortgages,  975. 

requisites  and  form  of,  976. 
of  change  of  name,  1007. 

form  of,   1007. 
to  county  attorney  of  hearing  of  habeas  corpus  case,  1036. 

form  of,  1036. 

form  of  to  plat  homestead,  1060. 
when  injunction  not  granted  without,  1081. 

form   of,  1073,  1083. 

form  of  filing  claim  by  sub-contractor,  1141. 
form  of  to  mortgagee  to  cancel  mortgage,  1154. 
of  motions,  when  to  be  given,  1163. 

form  of,  1163. 

service  and  return  of,  1164. 
in  case  of  partition,  service  and  return  of,  1182. 

form  of  by  referees  to  incumbrancers,  1188. 


744  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

NOTICE  (continued)— 

of  sale  by  referees,  1199. 

form  of,  1199. 

form  of,  of  application  for  a  receiver,  1237. 
of  notice  of  sheriff's  sale,  1277. 

form  of  notice,  1279. 
form  of  notice  by  sheriff  to  defendant  in  execution  of  sale  of  real 

estate,  1283. 
form  of  notice  to  executor  of  proceedings  to  subject  real  estate  to 

execution,  1291. 

form  of,  to  choose  appraisers,  1294. 
notice  of  the  motion  in  summary  proceedings,  1300. 

form  of,  1300. 
of  appeal,  1321,  1383. 
form  of,   1321. 
service  of,  1322,  1383. 
to  quit,  1415. 

form  of,  1415. 

See  Publication;    see  Service. 
NUISANCE— 

injunctions   granted  to  restrain  in  case  of  sale  of  intoxicating 
liquor,  1071,  1072. 

of  the  application  in  such  case,  its  form,  1073. 
form  of  petition  in  case  of,  1082. 
injunction  granted  to  restrain  generally,  1074. 
definition  of,   1167. 
when  the  action  lies,  1168. 
when  it  will  not  lie,  1169. 
of  the  petition,  1170. 

forms  of,  1170. 

abatement  of,  by  parties  injured,  1171. 

power  of  municipal  corporations  to  determine  what  is,  1172. 
of  practice,    1173. 
of  the  order  of  abatement,  1174. 

form  of,  1174. 
NUMBER— 

of  changes  of  venue,  124. 
of  trial  jurors,  497. 
filling  up,  498. 
of  witnesses,  limiting,  506. 
NUMBERED— 

causes  of  demurrer  must  be,  258. 
counts  of  a  petition  must  be,  248. 
paragraphs  in  petition  in  equity  must  be,  251. 
NUNC  PRO  TUNG— 

entries,  when  courts  may  make,  691. 

OATH— 

who  may  administer,  34,  922. 

of  shorthand  reporter,  22. 

of  juror  as  to  qualifications,  501. 

of  jury  to  try  issues,  501. 

courts  may  administer,  34. 

to  witness,  504. 

form  of,  504. 

form  of  affirmation  of,  504. 
to  bailiff  of  petit  jury,  556. 

form   of.    556. 
of  referees,  583. 


IXDEX.  745 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

OATH  (continued)— 

form  of,  583. 

of  appraisement  of  property  when  delivery  bond  is  taken  in  at- 
tachment,  741. 
form  of,  741. 
garnishee  must  take,  to  make  true  answers,  772. 

form  of,  772. 

to  appraisement  in  replevin,  form  of,  904. 
of  referees  to  determine  limits  of  homestead,  10C4. 
of  referees  in  partition,  form  of,  1192. 
of  receivers,  form  of,  1243.  , 

of  appraisers,  form  of,  1294. 
OBJECTIONS— 

that  suit  is  brought  in  wrong  county,  waived  when,  114. 
which  might  be  raised  by  demurrer,  when  waived,  2/8. 
to  application  for  continuance,  when  made.  487. 
to  evidence  on  trial,  when  must  be  taken,  525. 

See  Pleadings;     see  Demurrer;    see  Motion;     see  Answer; 

see  Exceptions;    see  Depositions. 
OCCUPYING  CLAIMANTS— 

action  by  at  law,  5. 
OCCUPATION— 

of  homestead  by  survivor,  1065. 
OFFER— 

conditional  to  confess  judgment,  674. 

to  confess  judgment  before  action  is  brought,  671. 

after  action  is  brought,  672. 
to  compromise,  673. 

form  of  by  allowing  judgment  to  be  taken,  673. 
OFFICE— 

venue  in  cases  of  suits  growing  out  of  business  of  an  office  or 

agency,  108. 
OFFICERS— 

duty  of,  in  attachment  cases,  730. 

compensation  of,  in  proceedings  auxiliary  to  execution,  845. 

duty  of  in  habeas  corpus  cases,  1039. 

presumptions  in  favor  of  acts  of,  1208. 

See  Venue:    see  Depositions;    see  Clerk  of  District  Court; 

see  Sheriff. 
OFFICIAL  BOND— 

security  to  whom,  870. 
when  action  will  lie  on,  871. 

may  be  several  on  same  bond,  872. 
extent  of  liability  of  sureties,  873. 
petition  in  actions  on,  874. 

form  of,  874. 
ONE  SUING  FOR  ALL— 

when  parties  are  numerous,  etc.,  68. 
ONUS  PROBANDI— See  Burden  of  Proof. 
OPEN  AND  CLOSE— See  Argument. 
OPINIONS— 

of  supreme  court  to  be  in  writing  and  filed.  21.  1391. 
when  to  be  published,  and  what  must  show,  21,  1391. 

See  Evidence;    see  Appeals. 
ORAL  ARGUMENTS— 

in  supreme  court,  1390,  1405. 


746  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ORDER— 

allowing  the  examination  of  witnesses,  461. 

of  trial,  474,  475. 

of  proof  and  of  examination  of  witnesses,  520,  521. 

of  argument  on  trial,  535. 

of  reference,  when  made,  580,  581. 

of  new  trial,  effect  of,  627. 

allowing  specific  attachment,  756. 

for  examination  of  judgment  debtor,  made  by  whom,  S37. 

form  of,  837. 
for  change  of  name,  1005. 

form  of,  1005. 
penalty  for  disobeying  order  of  discharge  in  habeas  corpus  case, 

1050. 

of  court  allowing  an  injunction,  form  of,  1083. 
of  mandamus,  1110,  1111,  1115.  1116. 
for  abatement  of  a  nuisance,  form  of,  1174. 
appointing  guardian  ad  litem  in  partition,  form  of,  1185. 
ORDERS— 

made  in  attachment  proceedings.  764. 
disobedience  of  is  a  contempt,  991. 
what  are,  1166. 

when  may  issue  in  vacation,  1166. 
how  kept  in  force,  1166. 
when  bond  may  be  required,  1166. 

See  Appeals. 

restraining,  when  issued  by  supreme  court,  1408. 
ORDINANCE— 

of  city  or  town,  how  proved,  415. 
ORDINARY— 

language  to  be  used  in  pleading;    see  Pleading. 
ORDINARY  PROCEEDINGS— 
include  law  actions,  2,  5. 
actions  which  must  be  by,  5. 

may  be  by  ordinary  or  equitable,  8. 
effect  of  error  in  form  of  proceeding,  10. 
how  remedied,  11. 
when   objection  waived,   12. 
when  change  in  proceedings  may  be  ordered,  15. 
of  uniformity  of  procedure,  16. 

See  Actions,  Trial,  Remedies. 
ORGANIZATION— 

of  supreme  court;    see  Supreme  Court, 
of  district  court;    see  District  Court, 
of  superior  court;    see  Superior  Court. 
ORIGINAL  ENTRIES— 

when  admissible  in  evidence,  404. 
what  is  book  of,  443. 

charges  how  made  in,  444  to  446. 
made  by  third  persons,  446. 

See  Evidence. 

papers,  when  sent  up  on  appeal;    see  Appeal, 
papers,  when  may  be  withdrawn  from  files  of  the  supreme  court; 

see  Appeal. 
ORIGINAL  NOTICE— 

actions  commenced  by,  1G7. 

remiisites  and  form  of.  167.  168,  170. 

judgment  can  not  be  collaterally  attached  for  defects  in  form,  169. 

computation  of  time,  171. 


INDEX.  747 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

ORIGINAL  NOTICE    (continued)— 

notice  served  by  whom,  172,  185. 
manner  of  service,   173. 
on  partnership,  174. 
on  an  agent  of  a  corporation,  175. 
on  an  agent  employed  in  an  office  or  agency,  176. 
on  municipal  corporations,  177. 
on  a  county,  178. 
on  minors,  179. 
on  insane  persons,  180. 
on  prisoners  in  the  penitentiary,  181. 
return  of  service  by  officer,  182. 
requisites  and  form  of,  182. 
form  of  acknowledgment  of  service,  182. 
of  service  by  leaving  copy,  183. 
form  and  requisites  of  return,  183. 
of  service  on  Sunday,  184. 

form  of  affidavit  for,  184. 

sheriff  may  be  fined  for  failing  to  serve  or  return  notice,  185. 
of  proof  of  service,  how  made,  186. 
of  conclusiveness  of  return,  186. 
of  service  by  publication,  when  may  be  made,  187. 
of  construction  of  statute,  188. 
presumptions,    188. 

of   the   affidavit  for  publication,   189. 
form    of,    189. 
proof  of  publication,  how  made,  190. 

form  of,  190. 

of  actual  personal  service,  191. 
of  service  on  unknown  defendants,  192. 

form  of  notice  in  such  cases,  192. 
need  not  be  served  when  defendant  appears,  254. 
amendment  of,  355. 
OUSTER— 

judgment  of  in  quo  warranto  proceedings,  1230. 
OWNERSHIP— 

when  and  how   alleged,   214. 

notice  to  the  officer  of  claim  of,  in  attachment  cases,  739. 
form  of,  739. 
form  of  affidavit  to,  739. 

See  Replevin  and  Detinue. 
PAPERS— 

how  withdrawn  from  files  in  supreme  court,  1357,  1400. 
PAPERS  AND  WRITINGS— 

production  of.  how  compelled,  421  to  428. 

See  Books  and  Papers. 
PARAGRAPHS— 

of  petition,  when  to  be  separated  and  numbered;    see  Petition; 

Pleading;    Equitable  Proceedings;    see  Numbered. 
PARCELS— 

sale  in,  redemption  from,  1264. 
PARENT  AND  CHILD— 

parent  may  sue  for  child's  services,  71. 

may  sue  for  damages  causing  death  of  child,  71. 

for  seduction  of  daughter,  71. 
PAROL  EVIDENCE— See  Evidence, 
PAROL  CONTRACT— See  Statute  of  Frauds. 
PARTIAL  DEFENSE— 
how  pleaded,  311. 


748  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PARTIES— 

real  party  in  interest  must  be,  54,  53,  59. 

one  having  a  beneficial  interest  may  sue,  54. 

holder  of  legal  title  to  land  shouid  sue  for  damages  to  it,  Cl. 

indorsee  of  commercial  paper  may  sue,  55. 

holder  of  paper  as  collateral  security  may  sue,  55. 

assignee  may  sue,   58,  59. 

owner    of    personal    property    or    one    having    special    property 

should  sue  for  damages  to  it,  60. 
when  one  partner  can  sue  another,  61. 

when  he  can  not,  61. 

administrators,  executors  and  guardians  may  sua,  62. 
foreign  executor  may  sue,  when,  63. 
trustee  may  sue,  when,  64. 
when  an  agent  may  sue,  64. 

persons  for  whose  benefit  a  contract  is  made  may  sue,  65. 
bonds,  action  on  may  be  brought  in  name  of  one  secured  who  is 

injured,  66. 

persons  authorized  by  statute  to  sue,  67. 
when  parties  are  numerous  one  may  sue  for  all,  68. 
corporations  must  sue  in  corporate  name,   69. 
married  women  may  sue,  when,  70. 
parents  may  sue  for  services  of  their  children,  71. 

may  recover  for  wrongful  act  causing  death  of  minor  child, 

71. 

infant  must  sue  by  guardian  or  next  friend,  72. 
insane  person  must  sue  by  guardian,  73. 
joinder  of  plaintiffs,  74,  75,  76,  77. 
defendant,  all  persons  having  an  adverse  interest  should  be,  73. 

in  actions  against  married  women,  79. 

in  actions  against  partners,  80. 

in  foreclosure  cases,  81. 

against  minors,  82. 

against   insane  persons,   83. 

against  unknown  defendants,  84. 

joinder  of,  85. 

in  actions  for  sale  of  intoxicating  liquor,  86. 
in  actions   ex   delicto,   87. 
in  actions  for  conversion,  88. 

but  one  satisfaction  in  cases  of  tort,  89. 

effect  of  release  of  one  defendant,  89. 
new   parties  defendant,   when   made.    90. 
substitution  of,  when,  91.  94.  95. 
in  actions  against  sheriff,  92,  93. 

death  of  party  or  transfer  of  interest  will  not  abate  action,  01,  96. 
in  actions  in  case  of  landlord's  attachment,  97. 
who  must  be  to  actions  to  consolidate  them,  197. 
names  of,  how  stated  in  petition:    see  Petition, 
effect  of  presence  of  when  deposition  is  taken,  379. 
absence  of,  a  ground  for  a  continuance,  482. 
to  the  action,  when  can  not  be  witnesses,  514.  515.  516. 
understanding  of,  as  to  terms  of  an  agreement,  517. 
judgment  may  be  for  or  against  same,   631. 
in  actions  of  right.  853. 
in  actions  of  replevin,  898. 
In  certiorari,  947. 

to  the  proceedings  to  foreclose  chattel  mortgages,  978. 
of  parties  to  an  injunction  proceeding,  1ftF76, 
in  action  to  enforce  mec>ianip's  lien,  1133. 
to  foreclosure  of  mortgages,  1145. 


INDEX.  749 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PARTIES  (continued)— 

in  actions   of  partition,  1177. 
in  actions  of  forcible  entry  and  detainer,  1411. 
PARTITION— 

when  voluntarily  made,  1175. 

by  suit,  1176. 

parties  to  the  action,   1177. 

when  it  is  not  the  proper  remedy,  1178. 

of  water  power,  mills,  etc.,  1179. 

of  the  interest  of  the  widow  and  of  the  homestead,  1180. 

of  land  owned  by  a  firm,  1181. 

of  the  notice  and  its  service,  1182. 

requisites  of  the  petition,  1183. 

form  of  in,  1183. 

form  of  when  there  are  incumbrances,  1183. 

form  of  prayer  when  liens  are  set  out,  1183. 
of  the  answer,  wnen  taken  as  true,  1181. 

of  minors  by  guardian  ad  litem,  1185. 

form  of  order  appointing  guardian  ad  litem,  1185. 
form  of  his  answer,  1185. 

of  disclaimer,  when  entered,  form  of,  1186. 
practice  on,   1187. 
incumbrances,  appointment  of  referee  to  ascertain,  1188. 

form  of  referee's  notice  to  incumbrancers,  1188. 

proceedings  in  relation  to,  1188. 
decree  in,  1189. 

form  of,  1189. 
appointment  of  referees,  1190. 

form  of  commission  to,   1190. 

directions  to,  1191. 

qualifications  of,   1192. 

form  of  oath  of,  1192. 

when   referees  need   not  be   appointed,  1193. 
duties  of  referees,  when  partition  is  made,  1194. 

report  of  partition,  1195. 

form  of,  1195. 

form   of  plat  to  accompany  report,   1195. 
when  report  will  be  set  aside.  1196. 
confirmation  of  the  report,  1197. 

form  of  judgment  on,  1197. 
bond  of  referees  when  sale  is  made,  1198. 

form  of,  1198. 
notice  of  sale,  1199. 

form   of,  1199. 
report  of  sale  by  referees,  1200. 

form  of,  1200. 

setting  aside  the  sale,  1201. 
confirming  sale  and  of  conveyance,  1202. 

form  of  conveyance,  1202. 

effect  of  conveyance,   1203. 
investing  proceeds  of  sale,  1204. 
of  costs  and  attorney's  fees.  1205. 

when  fees  not  taxed,  1205. 

amount  of  fees  taxed,  1205. 
of  appeals,  1206. 
of  the  record,  1207. 
PARTNERS— 

suits  for  firm  debts,  how  brought,  61. 

when  one  partner  may  sue,  61. 

one  partner  can  not  sue  the  other,  61. 


750  IXDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PARTNERS  (continued)— 

may  sue  him  on  account  stated,  61. 

actions  against,  80. 

surviving  must  sue  for  debts  due  the  firm,  219. 

may  be  sued  jointly  or  severally,  219. 

caption  of  petition  against,  219. 

form  of  petition  by  surviving  partner,  250. 

assignment  by,  928. 

See  Partnership;    see  Original  Notice. 
PARTNERSHIP— 

how  served  with  original  notice,  174. 

in  what  name  suits  brought  by  or  against,  219. 

should  be  sued  how,  219. 

property,  how  attached,  735. 

appointment  of  receivers  in,  1239. 

See  Partners;    see  Attachment. 

PATERNITY—  See  Divorce,  Alimony  and  Annulling  Marriages. 
PAYING  OVER  PROCEEDS— 

of  sheriff's  sale;     see  Sheriff's  Sale. 
PAYMENT— 

how  pleaded,  214,  298,  313. 

in  mechanic's  lien  cases,  of  owner  to  contractor  within  the  thirty 

days,  1142. 
PEDIGREE— 

how  proved;    see  Evidence. 
PENALTY— 

venue  in  actions  for,  101. 

for  failure  of  garnishee  to  attend  court  and  answer,  779. 

See  Limitation  of  Actions;    see  Foreclosure  of  Mortgages. 
PENDENCY  OF  ACTION— See  Lis  Pendens;  see  Notice. 
PENSION  MONEY— 

exempt  from  execution,  824. 
PEREMPTORY— See  Mandamus. 
PERMITS  TO  SELL  LIQUOR— 

may  be  revoked  by  district  court,  34. 
PERFECTING  APPEAL— See   Appeals. 
PERFORMANCE— 

of  contract,  place  of,  104. 

of  precedent  conditions,  how  plead,  239. 

contracts  not  to  be  within  one  year,  457. 

of  part,  459. 

PERPETUATING  TESTIMONY— See  Evidence. 
PERSON— See  Personal  Actions;  Statute  of  Limitations. 
PERSONAL  ACTIONS— 

venue  in,  109. 
PERSONAL  EARNINGS— 

exempt  from  execution,  823. 
PERSONAL  INJURY— 

claim  for  is  assignable,  56. 

See  Pleading;     see  Petition. 
PERSONAL  JUDGMENT— 

when  can  not  be  rendered,   664. 
PERSONAL  PROPERTY— 

breach  of  warranty  in  sales  of.  how  pleaded.  215. 

contracts  relating  to  sale  of:    see  Statute  of  Frauds:  see  Venue: 
see  Remedies;    see  Parties;    see  Pleadings;    see  Replevin  and 


INDEX.  751 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PERSONAL  PROPERTY  (continued)— 

Detinue;    see  Execution;    see  Sheriff's  Sale;    see  Chattel  Mort- 
gages. 
PERSONAL  TRANSACTIONS  OR  COMMUNICATIONS— 

witness  can  not  testify  to,  515,  516. 
PETITION— 

effect  of  failure  to  file  at  time  fixed  in  notice,  171,  252. 

not  filed  till  memorandum  made  on  appearance  docket,  171. 

the  first  pleading,  208,  217. 

of  the  name  of  court  and  county  in,  217. 

of  name  of  the  parties,  218. 

of  the  commencement  of,  217,  218. 

form  of  caption  of,  218. 

in  case  of  partnership,  219. 

form  of  caption  in  suits  against,  219. 
in  action  against  one  in  representative  capacity,  220. 

form  of  caption,  220. 
in  actions  by  minors,  221. 

form  of  caption  to,  when  name  of  defendant  is  not  known,  222. 
what  petition  must  state  when  defendant  is  not  known,  222. 
forms  of  commencement  of,  223. 
statement  of  facts  in,  208,  224. 

material  facts  only  stated  in,  225. 

matters  of  which  courts  take  judicial  notice  not  to  be  stated, 

226. 

in  when  fraud  is  pleaded,  213,  227. 
implied  promise  not  to  be  stated  in,  228. 
time,  quantity,  value  and  place,  how  stated  in,  229. 
duty  of  courts  as  to  statements  in,  230. 
when  the  action  is  on  a  bill  or  note,  231,  232. 
in  must  show  plaintiff's  right  to  sue,  232. 
in   actions    on   written   contracts,    233. 

copy  of  writing  sued  on  must  be  set  out,  233. 
instruments  of  evidence  need  not  be,  233. 
in  actions  on  accounts,  234. 

bill  of  particulars  set  out  in,  234. 
in  actions  for  torts,  allegations  in,  235. 

when  special  damages  alleged,  235. 
in  actions  for  slander  and  libel,  236. 
in  when  statute  is  pleaded,  237. 
in  when  judgment  is  pleaded,  238. 

when  pleading  performance  of  condition  precedent,  239. 
when"  suit  is  in  representative  capacity,  240. 
when  declaring  on  a  conveyance,  241. 
when  malice  is  relied  on  it  must  be  specially  pleaded,  241. 
when  bond  is  declared  on,  241. 
when  contract  is  declared  on,  241. 
when  irrelevant  or  redundant  matter  will  be  stricken  out,  242. 

form  of  motion  to  strike  out,  242. 
when  motion  for  more  specific  statement  will  lie,  243. 

form  of  motion,  243. 
demand  for  judgment  in,  244. 
form  of.    244. 
in  equity  cases.  245. 

forms   of.   245. 
for   alternative   relief,   245. 
on  money  claim,  only  one  prayer  needed,  246. 
of  signature  to  petition,  247. 

form  of,  247. 
each  cause  of  action  must  be  stated  in  a  separate  count,  248. 


752  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PETITION  (continued)— 

counts  of  must  be  numbered,  248. 

motion  to  divide  and  number  counts  in,  when  will  lie,  248. 
form  of  motion,  248. 

motion  to  correct  petition  when  it  lies,  248. 

different  counts  in  for  same  cause  of  action,  249. 
form  of  on  a  promissory  note  against  maker,  250. 

against  maker  and  indorser,  250. 

on  note  payable  in  specific  personal  property.  250. 

in  action  on  note  by  surviving  partner  of  firm,  250. 

by  an  indorser  who  has  paid  note,  250. 

for  goods   sold    and   delivered,    250. 

statement  of  account  in  case  of,  250. 

on    an    account    stated,    250. 

on  an  account  for  services,   250. 

on  sale  of  a  chattel,  250. 

by  one  administrator  against  another,  250. 

on  judgment  by  leave  of  court,  250. 

on  a  foreign  judgment,   250. 

for  breach  of  promise  of  marriage,  250. 

against  a  surgeon  for  malpractice,  250. 

on  a  policy  of  life  insurance  in  a  mutual  benefit  association, 
250. 

for  damages  for  an  assault,  250. 

in  intervention,  331. 

form  of  for  production  of  books  and  papers,  423. 

form  of  to  perpetuate  testimony,   460. 

for  an  attachment,  requisites  of,  715,  716,  720. 

form  of,  716. 

verification  of  in  attachment  cases,  722. 

form  of  for  examination  of  judgment  debtor,  835. 
in  equity  to  subject  property  to  satisfaction  of  judgment,  846. 

form  of  petition,  847. 
in  an  action  of  right,  857. 

form  of  in,  857. 

to  quiet  title,  865. 

form  of  in,  865. 
on  official   bond,   form   of,   874. 
on  forfeiture,   form  of,  876. 
requisites  of  in  action  against  railroad  for  setting  fire,  888. 

form  of  in  such  case,  886. 
killing  stock  by  railroad,  form  of  petition  for,  887. 

exhibits  attached   to    form   of,    887. 
in  actions  of  replevin  and  detinue,   900,   911. 

form  of.  900,  911. 
on  an  award,  919. 

form  of,    919 
in  certiorari  proceedings,  requisites  of,  950. 

form  of,  950. 
for  change  of  name,   1004. 

form  of,  1004. 
in  actions  of  divorce  and  for  alimony,  1016. 

form  of  in,  1016. 

to  annul  marriages,  1029. 
in  habeas  corpus  case,  1033. 

form   of.  1033. 
in  injunction  case.  1082. 

forms  of.   1082. 
in  action  by  landlord  to  enforce  his  lien,  1103. 

form  of,  1103. 

form  of  affidavit  to,  1103. 


INDEX.  753 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PETITION    (continued)— 

in  mandamus  proceedings,  requisites  of,  1112,  1114. 
in  actions  to  enforce  mechanics'  liens,  1137. 

form  of,  1137. 

in  actions  to  foreclose  real  estate  mortgages,  1147. 
form    of,   1147. 

form  of  prayer  in  when  notes  not  all  due,  1147. 
in  actions  to  foreclose  title  bonds,  1147. 

form  of,  1147. 
in  actions  to  abate  nuisances,  1170. 

forms  of,   1170. 

in  actions  of  partition,  requisites  of,   1183. 
form  of,  1183. 
form   of  additional   paragraphs   in   when   there   are    iacum- 

brances,  1183. 
judgments  may  be  vacated  by,  1218,  1219. 

form  of,  1221. 
in  actions  of  quo  warranto,  1229. 

form  of,  1229. 

form  of  for  appointment  of  receiver,   1238. 
form  of  for  alienating  affections,  250. 
form  of  to  recover  costs  of  party  wall,  250. 

form  of  against  a  city  for  injuries  from  defective  sidewalk,  250. 
form  of  to  recover  damages  for  ejection  from  a  train,  250. 
form  of  to  recover  from  a  sheriff,  250. 
form  of  on  policy  of  fire  insurance,  250. 
form  of  to  revive  judgment  against  an  administrator,  1276. 
form  of  to  subject  real  estate  to  the  payment  of  a  judgment 

against    executor    or    decedent,    1291. 
form  of  in  an  action  of  trespass,   1306. 
in  an  action  of  waste,  1312. 
in  action  of  forcible  entry  and  detainer,  1416. 

form  of,  1416. 

when  petition  should  be  attacked  by  motion,  257. 
in  equitable  actions  must  be  separated  into  paragraphs,  251. 
what  it  must  contain,  251. 

form  of  to  correct  mistake  in  deed,  251. 
amendment  of,  340  to  342. 

See   Amendments;     see   Pleading;     see  Joinder   of  Causes 

of  Action;    see  Verification. 
PHOTOGRAPHS— 

as  evidence,  519. 
when   competent,   519. 

,,  jury  may  have  magnifying  glass  to  examine,  519. 
PHYSICIAN— 

exempt  from  jury  service,   496. 

privileged  communication  to  can  not  be  divulged,  509. 
PICTURE— See  Photograph. 
PLACE— 

of  performance  of  contract,  104. 
of  holding  courts,  18,  23,  24,  34. 

See   Courts. 

of  commencing  actions;     see  Venue, 
allegations  of,  in  pleadings,  229. 
denials   of,   289. 

PLACE  OF  TRIAL— See  Change  of  Place  of  Trial;    see  Venue. 
PLAINTIFF— 

real  party  in  interest  must  be,  54. 
indorsee   may  be,  55. 
assignee  may  be,  58,  59,  60. 
Vol.  11-48 


754  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PLAINTIFF  (continued)— 

in  action  by  partners,  61. 

in  actions  by  executors,  administrators  and  guardians,  62. 

by  foreign  administrators,  63. 

by  a  trustee,  64. 

by  person  for  whose  benefit  a  contract  is  made,  65. 

on   bonds,   66. 

where  persons  are  authorized  by  statute  to  sue,  67. 

brought  by  one  or  more  for  all,  68. 

by  corporations,   69. 

by  married  women,  70. 

by  parents,  71. 

by  minors,  72. 

by  insane  persons,  73. 
of  joinder  of,  74,  75,  76,  77. 
when  he  has  no  legal  capacity  to  sue,  2G1. 
defect  of  parties,  263. 
not  entitled  to  relief  demanded,  264. 
pleading  non-joinder  of,  form  of,  313. 
when  costs  should  be  taxed  to,  701. 
PLAT— 

admissible  in  evidence  when,  403. 
of  referees  in  partition,  form  of,  1195. 
PLATTING  HOMESTEAD— See  Homestead. 
PLEADING — 

what  must  show  when  relief  is  sought  on  ground  of  fraud,  153. 

when  statute  of  limitations  must  be  pleaded,  164. 

definition  of,  204. 

object   of,    205. 

forms  of  action  abolished,  206. 

facts  only  need  be  stated,  206,  208,  224. 
construction,  rule  of,  207. 

what  pleadings  are  allowed  under  the  code,  203. 
evidence  must  not  be  pleaded,  209,  224. 
immaterial  matters  must  not  be  pleaded,  208,  209. 
matter  may  be  plead  as  inducement,  209. 
legal  conclusion  and  presumptions  must  not  be,  210. 

what  are  legal  conclusions,  210. 

consideration  need  not  be  plead  in  first  instance  in  case  of  writ- 
ten instruments,  210. 
how  issues  are  formed,  211. 

when  kind  and  species  of  property  must  be  stated,  212,  241. 
when  necessary  to  allege  commencement  of  particular  estate,  212. 

241. 

effect  of  pleading  more  than  is  necessary,  212. 
allegation  of  ownership  title,  214. 
payment,  214,  298,  313. 
breach  of  covenant  of  warranty,  215. 

warranty  in  sale  of  chattels,  215. 
estoppel,  216. 

See  Petition, 
caption  of,  218  to  221. 

when  name  of  defendant  is  not  known.  222. 
of  commencement  of  petition,  223. 
must  contain  a  statement  of  the  issues,  205,  224. 
material  facts  only  to  be  stated.  225. 

matters  of  which  courts  take  judicial  notice  need  not  be,  223. 
fraud  must  be  pleaded.  213.  227. 
implied  promise  need  not  be,  228. 
allegations  of  time,  quantity,  place  and  value,  22D. 


INDEX.  755 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PLEADING   (continued)— 

what  must  be,  generally,  230. 

in  actions  on  notes  and  bills,  231. 
must  show  right  to  maintain  the  action,  232. 
must  show  if  action  is  based  on  a  written  instrument,  233. 

must  set  out  copy  of  it,  233. 
a  judgment  must  show  what,  232,  238. 
in  action  on  an  account,  234. 

must  set  out  copy  of  it,  234. 
in  actions  for  torts  generally,  235. 

when  special  damages  must  be,  235. 
in   actions  of  slander  and  libel,   236. 
malice  alleged  when,  236  to  241. 
a  statute,  237. 

performance  of  conditions  precedent,  239. 
representative  capacity  what  alleged,  240. 
a  conveyance,  241. 
breach  of  conditions  of  a  bond,  241. 
alleging   non-payment  of   damages,   241. 
breach  of  contract  generally,  241. 
irrelevant  or  redundant  matter  stricken  out,  when,  242. 

form  of  motion  for,  242. 
made  more  specific,  when,  243. 

form  of  motion  for,  243. 
demand  for  judgment,  244. 

forms  of,  244. 

in  equity  cases,  245. 
form  of,  245. 
of  alternative  relief,  245. 

when  there  are  several  counts,  246. 

signature  to,  and  forms  of,  247. 

must  state  each  cause  of  action  in  a  separate  count,  248. 
when  motion  to  divide  and  number  will  lie,  248. 

form  of  motion,  248. 
when  motion  to  correct  will  lie,  248. 
the  same  cause  of  action  in  different  counts,  249. 

See  Demurrer;    see  Answer;    see  Judgment, 
when  must  be  filed  by  defendant,  256. 
day  court  opens  is  first  day  of  the  term  for  purpose  of  timing 

pleadings,   256. 
when   allegations  of  taken   as  true,   256. 

See  Statute  of  Frauds, 
attaching  interrogatories  to.  465. 

time  of  answering  them,  466. 

affidavits    to,    467,    469. 

form  of,   467. 

of  compelling  answers  to  interrogatories.  470. 
defective  when,  may  file  statement  of  omitted  facts,  625. 
In  case  of  application  for  new  trial.  627. 
in  actions  on  attachment  bonds.  751. 
in  cases  of  specific  attachments,  756. 
in  cases  of  replevin,  906. 
in  homestead  cases,  1062. 
in   injunction  cases,    10S9. 
in  actions  to  enforce  landlord's  lien.  11  OR. 
in  actions  to  foreclose  mortga^s  and  title  bonds,  1158. 
in  actions  of  quo  warranto.  1228. 
in  actions  of  forcible  entry  and  drainer,  1416. 

See    Amendment;     see    Pleadi^srs;     see    Verification;     see 
Supplemental;    see  Substitution;    see  Intervention. 


756  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PLEADINGS— 

filing  of,  53. 

necessity  for  filing  suspended  by  filing  motion,  257. 

verification   of,   332   to   339. 

supplemental,  when  permitted,  349. 

substituted,  when  allowed,  356. 

in  attachment  cases  brought  for  debts  due  the  State,  760. 

in  case  of  contempts,  1000.   ' 

in  actions  to  enforce  mechanics'  liens,  1135. 

in  proceedings  to  vacate  and  modify  judgments,  1220 

See  Pleading. 
PLEDGE— 

of  sale  of  chattel  mortgaged  property,  987. 
POSSESSION— 

of  one  tenant  in  common,  the  possession  of  all,  149. 

retention  of  by  mortgagor  of  personal  property,  958. 

See  Action  of  Right;  see  Quieting  Title. 
POWER— 

of  referees,  584. 
PRACTICE— 

error  in  form  of  proceeding,  10,  11,  12. 

can  not  demur  and  answer  same  counts  at  same  time,  264. 

demurrer  will  not  lie  to  part  of  a  count,  265. 
nor  to  a  paragraph  in  a  petition,  265. 

in   case  of   amendments   to   pleadings,    350. 

in  taking  case  from  jury,  548. 

in  actions  tried  by  the  court,  574  to  578. 

in   applications   for   new    trials,    627. 

in  actions  on  attachment  bonds,  751. 

in  trials  of  actions  of  right,  859. 

in  cases  against  railroads  for  injuries  to  stock,  893. 

in  cases  of  replevin,  906. 

in  homestead  cases,  1062. 

in  injunction  cases,  1089. 

in  mandamus  cases,  1115. 

in  actions  to  enforce  mechanics'  liens,  1135. 

in  actions  to  abate  nuisances,  1173. 

in  actions  of  partition,  1187. 

in  proceedings  to  vacate  and  modify  judgments,  1220. 

in  actions  of  quo  warranto,  1228. 

in  actions  of  trespass,  1307. 

unwritten  of  supreme  court,  1403  to  1411. 

rules  regulating,  1379  to  1402. 
PRAYER— 

for  judgment  when  necessary,  312. 

when   there   are   several    counts,   246. 

for  alternative  relief,  245. 

in  equity  cases,  245. 

forms  of  to  petition,  244,  245. 

none  needed  to  defense  part  of  answer,  312. 
PRECEPT— 

when  will  issue  in  habeas  corpus  case,  1040. 

form  of,  1040. 

how  served,    1041. 

in  injunction  case,  form  of,  1090. 
PREJUDICE— 

defects  in  pleadings  disregarded  if  without,  207. 

ground  for  change  of  venue;    see  Change  of  Place  of  Trial. 


INDEX.  75? 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PREPARATION  FOR  TRIAL,  357  to  470. 
PRESERVATION— 

of  evidence  in  case  of  contempts,  1000. 
PRESUMPTIONS— 

in  favor  of  proceedings  of  courts,  32,  129,  1208,  1369. 

legal  must  not  be  pleaded,  210. 

in  favor  of  report  of  referee,  587. 

in  favor  of  judgments  and  their  conclusiveness,  658. 

in  habeas  corpus  cases,  1042. 

in  supreme  court  as  to  rulings  of  lower  court,  1369,  1370. 
PRIEST— 

exempt  from  jury  service;    see  Jury. 

privileged  communications  to,  not  to  be  disclosed. 

See    Privileged    Communications. 
PRINCIPAL  AND   SURETY— 

judgment  against  on  stay  of  execution,  802. 
See  Justification. 

duty  of  sheriff,  805,  806. 

when  no  stay  allowed,  804. 

determining  stay  by  surety,  804. 

exhausting  property  of  principal  first,  806. 
PRINTING — 

abstracts,  arguments,  etc.,   1396. 
PRIORITY— 

of  liens  in  attachment  cases,  738. 

of  chattel  mortgage  liens,  960,  961. 

of  mechanics'  liens,  1128. 

of  liens  in  cases  of  real  estate  mortgages,  1160. 

of  claims  filed  with  an  assignee,  938,  939. 
See    Judgments;     see    Attachments. 
PRISONER— 

how  served  with  original  notice,   181. 
See  Pleading. 

need  not  verify  pleadings,  332. 
PRIVATE    STATUTE— 

how   pleaded,    237. 
PRIVATE  WRITINGS— 

production  compelled  how;    see  Books  and  Papers. 

See  Evidence. 
PRIVILEGED— 

from  serving  as  jurors;    see  Jury. 
PRIVILEGED   COMMUNICATIONS— 

what  are,   509. 
PROCEDENDO— 

from  supreme  court,  when  to  issue,  1357,  1393. 

form  of,  1357. 
PROCESS— 

in  supreme  court,  effect  of  adjournment  on,  20. 

See  Clerk  of  District  Court. 
PROCEEDINGS — See  Revivor;    see  Summary  Proceedings;    Auxiliary 

Proceedings;    see  Actions;    Perpetuating  Testimony;    Remedies. 
PROCEDURE— 

unifomity    of,    16. 

when  defendants  not  all  served,  478. 

before  referees,  585  to  587. 

unwritten  in  supreme  court.  1403  to  1411. 
PRODUCTION  OP  BOOKS  AND  PAPERS— See  Books  and  Papers. 


758  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

PROHIBITION— See  Nuisance;    see  Injunction. 
PROMISE — See  New  Promise;    see  Implied  Promise. 
PROMISSORY   NOTE— See   Bills   and  Notes. 
PROOF— 

of  publication,  how  made,  190. 
under  denials,  283. 
order  of,  520,   521. 

See  Pleading;    see  Trial;    see  Evidence;  see  Burden  of  Proof. 
PROPERTY— See   Real   Property;     see    Personal    Property;     see    Re- 
demption. 
PROTEST— 

notarial,  evidence  of;    see  Evidence;    see  Notary  Public. 
PUBLICATION— 

original   notice  served  by,   187. 

statute  relating  to  must  be  strictly  complied  with,  188. 

when  judgments  rendered  on  service  by  can  not  be  collectively 

attacked,  188. 
of  affidavit  for  form  of,  189,  190. 

requisites  of,  189. 
proof  of  service  by,  190. 
of  notice  on  unknown  defendant,  192. 

form  of  notice,  192. 

personal  service  suspends  necessity  of,  191. 
proof  of,   435. 
how  perpetuated,  436. 
judgments  in  case  of  notice  by,  659. 

form  of  bond  to  abide  order  of  court  in  case  of  service  by,  659. 
re-trial  of  actions  when  judgment  has  been  rendered  by  default 

on  service  by,  662. 
in  actions  of  forcible  entry  and  detainer,  1417. 

See  Notice;    see  Unknown  Defendants. 
PUBLIC  BUILDINGS— 

sub-contractor's  lien  on;    see  Mechanics'  Liens  and  Claims. 
PUNITIVE  DAMAGES— See  Exemplary  Damages. 
PURCHASER— 

at  sheriff's  sale  of  real  estate,  rights  of,  1265,  1296. 
QUALIFICATIONS— 
of  referees,  583. 
in   partition   cases,    1192. 

form  of,   1192. 
of  receivers,  1243. 

form  of  bond,  1243. 
form  of  oath  of,  1243. 

See  Jury;    see  Justification. 
QUALITY  OF  ESTATE— 

as  to  ownership  and  title,  when  to  be  pleaded,  214. 

See  Pleading. 
QUANTITY— 

when  to  be  alleged,  229. 
denials  of,  289. 
QUESTIONS— 

leading,  what  are,  when  may  be  asked.  522. 
what  may  be  raised  by  instructions.  551. 
form  of  propounded  to  garnishee,  772,  773. 
QUIETING  TITLE— See  Action   of  Right, 
action  to,  852,  853,  855,  864,  865,  866. 


INDEX.  759 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

QUO  WARRANTO— 

no  action  joined  with,  199,  1228. 

object  and  purpose  of  the  writ,  1224. 

when  the  action  will  lie,  1225. 

when  it  will  not  lie,  1226. 

commencement  and  prosecution  of  the  action,  1227. 

pleading  and  practice  in,  1228. 

form   of  petition   in,   1229. 

form  of  verification  of,  1229. 

trial  and  judgment,  1230. 

power  of  the  court,  1231. 

when  trustees   appointed,   1230. 

duty  of,  1230. 
liability  of  members  of  a  corporation  in   case  of  judgment  of 

ouster,  1230. 
QUORUM— 

of  supreme  court,  four  judges  constitute,  17. 
RAILROADS— 

venue  in  actions  against,  105,  108. 

actions  against  for  personal  injury,  limitation  of,  141. 

for  double  damages  is  not  a  statute  penalty,  142. 
judgments  against  enforcing  orders  of  commissioners,   631. 
liability  for  setting  fires  under  former  law,  880. 

under  present  statute,  881. 

of  company   operating  a  road,   882. 

contributory   negligence,    883. 

evidence    in    such  actions,    884. 

damages,  how  measured,  885. 

petition  for  damages  by  fire,  form  of,  886. 
killing  stock,   liability  for,   887  to  894. 

form  of  petition  in  case  of  want  of  fence,  887. 

form  of  notice  of  the  killing,  887. 

form   of   affidavit  of  the   killing,   887. 

See   Stock. 

of  stock  running  at  large,  888. 
of  fencing  depot  grounds,  highways,  etc.,  889. 
of  failure  to  repair  fences,  890. 

third  persons,  when  liable  to  company  for  injuries  to  stock,  890. 
of  double  damages,  891. 

of  the  affidavit  and  notice,  892. 
practice,  evidence,  etc.,  893. 
speed  of  trains  of,  894. 
REAL  ACTIONS—  See  Actions  of  Right. 
REAL  PARTY  IN  INTEREST— 
must   be   plaintiff,   54. 
who  is  the  real  party  in  Interest,  54. 

See   Parties;     see  Actions. 
REAL  PROPERTY— 

venue  in  actions  relating  to,  98. 

record  of  instruments  affecting,  evidence  of,  438. 

action  to  recover;    see  Action  of  Right. 

proceedings  in  action  to  recover,  851.  854  to  869,  1412  to  1420. 

cancellation  of  contracts  for  sale  of.  1157. 

See  Appeals;    see  Partition;    sep  Actions:     SPP  Pleadings; 
see  mortgaged  Property;    see  Foreclosure  of  Mortgages. 


must  be  confined  to  issues,  524. 


760  1XDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

RECEIVER— 

an    executive   officer,    1232. 

when  should  be  appointed,  1233. 

appointed  in  any  civil  action,  1234. 

not  appointed  for  the  benefit  of  strangers,  1235. 

when  appointed  without  notice,  1237. 

of  the  application,  1236. 

form  of  notice  of,  1237. 

form  of  acceptance  of  service  of  notice,  1237. 
of  the  petition,  form  of,  1238. 
in  case  of  partnerships,  1239. 

of  mortgaged  property,   1240. 

of  corporations,  1241. 
rights  of  third  parties  protected,  1242. 
qualification  of,  1243. 

form  of  appointment,  1243. 
bond  of,  form  of,  1243. 
form  of  approval  of  sureties  on  bond,  1243. 

form  of  oath  of,   1243. 
powers  and  duties  of,  1244. 
liability  of,  1245. 
compensation  of,  1246. 
can  not  be  garnished,  1247. 
of  appeals,  1248. 
RECOGNIZANCE— 

not  affected  by  failure  of  judge  to  open  court,  27. 
RECORDS— 

under  control  of  court,  31. 

to  be  read  and  signed,  31. 

what  to  be  kept  by  clerk,  44. 

impeachment  and  correction  of,  47,  52. 

of  lost  records,  49. 

construction  of,  51. 

nunc  pro  tune  entries,  48. 

amendments  of,  made  by  order  of  court,  353. 

public,  how  proved;    see  Evidence. 

of  courts  how  proved,  408,  409,  411. 

of  acts  of  executive,  how  proved,  412. 

of  proceedings  of  legislatures,  413. 

of  marriages,  how  shown  in  evidence,  420. 

what  deemed  a  part  of,  on  appeal.  589,  591. 

how  writings  made  part  of.  589,  592. 

evidence  taken  in  shorthand  how  made  part  of  record,  589,  592. 

entries  of  judgments,  644,  670. 

caption  to  in  supreme  court,  form  of,  644. 

caption  to  in  district  court,  form  of,  644. 
reading   of,    645. 
amending,    645. 
entry  of  judgment  of,  dismissal  in,  C48. 

forms  of,  648. 

dismissal   in  vacation,    650. 

of   judgments,   657. 

forms  of,  657. 

of  judgment  by  confession,  665. 
indexing    of,    690. 
construction    of,    691. 
nunc  pro  tune  entries  in,  691. 
lost,   691. 

of  conviction  in  case  of  contempt,  998. 
should  be  complete  in  partition  cases.  1207. 


INDEX.  761 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

RECORDS    (continued)— 

of  supreme  court,  1392. 
certification  as  a  bill  of  exceptions,  589. 
correction  of  on  appeal  to  supreme  court,  1331,  1386. 
of  chattel  mortgages,  959. 
See   Judgments. 

REDEMPTION— 

rule  as  to  time  within  which  a  junior  mortgagee  may  redeem 
from  senior  mortgagee  does  not  depend  on  adverse  possession, 
149. 

in  case  of  foreclosure  of  mortgages  and  title  bonds,  1159. 
what  property  is  subject  to  generally,  1249. 
of  the  certificate  of  sale,  1250. 

form  of,  1250. 
when  made  by  the  defendant,  1251. 

may  be  made  by  creditors,  1252. 

who  is  a  creditor  under  the  statute,  1253. 

by  the  holder  of  a  mechanic's  lien,  1254. 

in   equity,    1255. 

what  law  is  applicable^  to  the  sale,  1256. 
of  creditors  redeeming'  from  each  other,  1257. 
computing  the  time   of  redemption,   1258. 
terms  of,  1259,  1260. 
who   obtains   the    property,    1261. 
mode   of   redemption,    1262. 

of  settling  controversies  as  to  right  to  redeem,  1263. 
from  sale  in  parcels,  and  of  the  interests  of  tenants  in  common, 

1264. 

rights  of  the  purchaser,   1265. 
of  assigning  the  right  to  redeem,  1266. 
of  the  sheriffs  deed,  1267. 

form  of,  1267. 

form  of  when  equity  of  redemption  is  sold,  1267. 

when  it  is»  constructive  notice,  1268. 
of  the  sheriff's  return,  1269. 

form   of,    1269. 

form  of  when  equity  of  redemption  only  is  sold,  1269. 

form  of  statement  to  sheriff's  return,  1269. 
damages  for  injury  to  property,  1270. 

REDUNDANT  MATTER— 

in  pleadings  stricken  out  on  motion,  242. 
form  of  such  motion,  242. 
REFEREES— 

trial  by,  when,  579  to  587. 

trial  to,  by  consent  of  parties,  579,  580. 

when  court  may  refer  causes  to,  for  trial,  580. 

cause  must  be  at  issue,  581. 

what  the  order  of  reference  may  provide,  581. 

form  of  when  made  by  the  court,  581. 
must  accept  reference,  582. 
vacancies  in,  how  filled,  582. 
decision  of  a  majority  binding,  582. 
must  be  sworn,  583. 

form  of  oath  of,  583. 
powers  of,   584. 

must  sign  bill  of  exceptions,  584*. 

may  permit  party  to  dismiss  his  action  after  it  is  submitted 

to,    584. 
procedure  before  same  as  in  court,   585. 


762  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

REFEREES   (continued)— 

report  facts  and  conclusions  of  law  separately,  586. 
when   set   aside   on   motion,    586. 
form  of  report,  586. 

judgment  may  be  rendered  on  report  of,  586. 
presumptions  in  favor  of  report,  same  as  to  court,  587. 
finding  of,  stands  as  a  verdict  of  a  jury,  587. 
exceptions  to  report,  when  and  how  taken,  587. 
when  case  will  be  sent  back  to  referee,   537. 
form  of  oath  of  to  determine  limits  of  homestead,  1064. 
appointment  of,  to  ascertain  and  report  incumbiances  in  parti- 
tion  case,   1188. 
of  to  make  partition,  1190. 
form  of  commission  to,  1190. 

See  Partition;    see  Reference;    see  Homestead. 
REFERENCE— 

of  causes  when  may  be  ordered,  580. 
cause  must  be  at  issue,   581. 
referee  must  accept,  582. 
when  cause  to  be  tried,   581. 
procedure  in  cases  of,  585. 
of  the  report,   586. 

See  Referees. 

to  determine  limits  of  homestead,  1063. 

to  ascertain  amount  of  incumbrances  in  actions  of  partition,  1188. 
REGISTER— 

duplicate  receipts  of  used  in  evidence,  407. 
REHEARING— 

petition  for  in  supreme  court,  its  requisites  and  when  filed,  1376, 
1395. 

argument  on,  1377. 
action  of  the  court  thereon,  1378. 

See  Appeals. 
RELEASE— 

of  joint  wrongdoer,  effect  of,  89. 

of  property;     see  Attachment. 

of  claim  of  sub-contractor  on  public  buildings  and  improvements, 

1120. 

of  real  estate  mortgages,  1161. 
pleading  of  specially;   see  Answer. 
RELEVANCY— See  Evidence. 
RELIEF— 

facts  stated  do  not  entitle  party  to,  ground  of  demurrer,  2G4. 
extent   of   granted  in  judgment,    635. 

See  Petition;    see  Prayer. 
RELIGIOUS  BELIEF— 

witness  can  not  be  compelled  to  disclose,  512. 
REMANDING  CAUSE— 

by  supreme  court;    see  Appeals. 
REMEDY— 

civil,  definition  of,  1,  3. 

classes  of,  1. 

at  law,  by  ordinary  proceedings,   2,  5. 

in  equity,  by  equitable  -proceedings,  2,  5,  6,  7. 

special   proceedings,   1,  3,   5. 

when  none  at  law,  6. 

when  both  at  law  and  in  equity.  8. 

not  merged  in  a  public  offense,  96. 


INDEX.  763 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

REMEDY  (continued)— 

of  party  for  wrongful  seizure  of  property  under  chattel  mort- 
gage, 983. 

in  case  of  landlord's  lien,  1100. 
when  partition  not  the  proper,  1178. 

See  Actions. 
REMITTITUR— 

of  part  of  judgment  in  supreme  court,  1350. 
REMOVAL— 

of  an  assignee,  943,  944. 
RENT— See  Landlord. 

adminstrator  may  sue  for,  when,  62. 
when  heirs  must  sue  for,  62. 
RENTS  AND  PROFITS— 

actions  for,  by  ordinary  proceedings,  5. 
REPLEVIN  AND  DETINUE— 
venue  in,  100,  897. 

no  action  joined  with  except  another  cause  of  replevin,  199. 
when  the  action  lies,  895. 
when  the  action  will  not  lie,  896. 
of  the  parties  in,  898. 
of  the  proceedings,  899. 
petition  must  be  sworn  to,  900. 
requisites  and  form  of,  900. 
when  it  must  allege  service  of  notice  of  ownership,  form  of 

such  allegation,  900. 

when  such  notice  must  be  served  before  suit  is  brought,  896. 
of  the  bond,  its  requisites,  901. 

form  of,  901. 

of  the  writ,  counterparts,  etc.,  902. 
form  of  writ,   902. 
service  of  writ,  manner  of,  903. 
affidavit  of  concealment,  form  of,  903. 
delivery  bond,  requisites  of,  904. 
form    of,    904. 
form   of  approval    of,   904. 

appraisers,  when  required,  form  of  notice  to  choose,  904. 
form  of   appraisement,    904. 
form  of  oath  to,  904. 
return  of  sheriff,  made  when,  must  show  what,  905. 

form  of,  905. 

of  the  verdict,  its  form,  572,  907. 
of  the  judgment,    its  requisites,    908. 
pleading,    practice  and   evidence,    906. 
of  the  execution,   909. 

form  of,  909. 

proceedings  when  property  has  been  concealed,  910. 
of  detinue,  911. 

form  of  prayer  in,  911. 
REPLY— 

is  a  pleading,  208. 

when  allowed,  316. 

effect   of   filing,    when   not   proper,    317. 

effect  of  failing  to  reply  when  it  is  necessary,  31 S. 

matters  material  to  the  petition  can  not  be  a"e2;9d  in,  320. 

claims  for  damages  can  not  be  first  made  in,  320. 

what  to  consist  of,  321. 

form   of,   324. 

form  to  answer  to  petition  on  a  policy  of  insurance,  324. 

any  number  of  defenses  may  be  pleaded  in,  322. 


764  LNTDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

REPLY  (continued)— 

of  demurrer  to  reply,  323. 

when  must  be  filed,  324. 

allegations  deemed  controverted,  324. 

must  be  verified  when,  325. 
REPORT— 

of  referees,  what  must  state,  586. 

form    of,    586. 

presumptions  in  favor  of,   587. 

of  jury  on  sale  of  property  as  perishable,  form  of,  763. 

of  referees  in  partition,  form  of,  1195. 
form  of  plat  attached  to,  1195. 
See  Partition. 

of  decisions  of  supreme  court,  19. 

of  an  assignee,  936. 
REPRESENTATIVE    CHARACTER— 

party  may  sue  in,  240. 

what  must  be  alleged  in  petition  in  action  in,  240. 

when   pleaded,    denial   of,   290. 
REPORTER,  SHORTHAND— 

appointment  and   qualification   of,  25,  36. 

duty  of,  removal  of,  25. 

notes  of  how  made  part  of  record  on  appeal,  589,  593. 

certificate   to    complete   record,    589. 

form  of,  589. 
REPORTER  OF  SUPREME  COURT— 

election  and  term  of,  19. 

to  prepare  decisions  for  publication,  19. 
RESIDENCE— 

county  of  defendants,  when  actions  brought  in,  109. 

See    Original   Notice;     see    Service. 
RESTRAINING  ORDERS— 

when  issued  by  supreme  court,  1408. 
RES  GESTJE— 

when  entries  part  of;    see  Evidence. 
RETURN— 

of  officer  on  original  notice,  182,   183. 

forms  of  serving  original  notice,  182,   183. 

when   may  be  amended,   185. 

sheriff  liable  for  failing  to,  185. 

defective  can  not  be  collaterally  attacked,  185. 

proof  of  facts  when  officer's  return  has  been  lost,  186. . 

when  deemed  conclusive,  186. 

of  notice  to   take  depositions,  370. 

of  depositions,   how   made,   391. 

of  sheriff  on  writ  of  attachment,  768. 
form  of,  768. 
effect  of,  769. 
amendment  of,  769. 

form  and  requisites  of  an  order  of  replevin,  905. 

See  Habeas  Corpus;    see  Execution;     see  Certiorari;     see 

Subpoena. 
REVERSAL — See   Appeals. 

REVIVOR— 

of  actions,  form  of  notice  to  executor,  96. 
of  judgments,   1271,   687. 
of  the  sheriff's  duty,  1272. 
of  the  affidavit,  1273. 


INDEX.  7G5 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

REVIVOR  '(continued)— 

execution  against  surviving  defendants,  1274. 

when  execution  may  be  quashed,  1275. 

proceedings  when  all  the  defendants  are  dead,  1276. 

form  of  petition  to  revive  a  judgment  against  an  administrator, 

1276. 

RIGHT,  ACTION  OF— See  Action  of  Right. 
RULE— 

to  produce  books  and  papers,  424. 

form  of,  424;    see  Books  and  Papers. 

to  show  cause  in  cases  of  contempt,  998. 

See  Jury. 
RULES   OF  PRACTICE— 

of  district  court,  29. 

power  of  judges  to  make,  29. 

See  District  Court. 

RULES   OF  PLEADING— See  Pleading. 
RULES  OF  SUPREME  COURT— See  Appeals. 

adoption  of,  by  supreme  court,  13  <  9. 

what  they  are,  1379  to  1402. 
RUNNING  AT  LARGE— 

when  stock  is,  888. 
SALE— 

by  an  assignee,  942. 

form  of  petition  for  sale  of  a  chattel,  250. 

report  of  jury  recommending  of  perishable  property,  763. 

of  chattel  mortgaged  property,  979. 

form   of  bill  of,    979. 

perpetuating  evidence  of  the  sale,   980. 

validity  of  chattel   property,   981. 

of  pledged  chattel   mortgage  property,   987. 

of  homestead,  1068. 

of  real  estate  on  mortgage  foreclosure,  1154. 

See  Partition;    see  Redemption;    see  Sheriff's  Sale. 
SATISFACTION— 

of  mechanic's  lien,   form   of,   1136. 

of  real  estate 'mortgage,  1154. 
form   of,    1154. 
form  of  notice  to,  1154. 

of  judgment,  when  canceled,  1297. 
SCHOOL  DISTRICT— 

must  sue  in  its  corporate  name,  69. 
SEAL— 

of  officers  taking  depositions. 

See  Depositions. 
SEATS  OF  JUSTICE— 

courts  to  be  held  at,  24. 
SECOND  MORTGAGES— 

valid,  965. 

SECONDARY  EVIDENCE— See  Evidence. 
SECURITY— 

for  costs,  when  may  be  required,  695. 
See  Costs. 

attorneys  and  officers  of  court  can  not  become,  698. 

of  additional,  698. 

effect  of  failure  to  give,  699. 

may  be  several  actions  on  same  in  case  of  public  officers,  872. 


TGG  IXDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

SEDUCTION— 

claims  for  assignable,  56. 
who  may  sue  for,  71. 
SELECTION— 

of  homestead,  1060. 
SEPARATE  ACTIONS— 

may  be  prosecuted  in  case  of  misjoinder;    see  Misjoinder. 
SEPARATE  ANSWERS— See  Answer. 
SEPARATE   COUNTS— 

each  cause  of  action  must  be  stated  in,  248. 
must  be  numbered,  248. 
same  cause  of  action  stated  in,  249. 
affirmative  defenses  -must  be  stated  in,  310. 

See  Petition;    see  Answer;    see  Counter  Claim. 
SEPARATE  TRIALS— 

when  allowed,  477. 
SEPARATION— 

of  witnesses,  505. 
discretionary  with  the  court,  505. 
practice  regarding,  505. 
SEPARATION  OF  JURY— 

when  allowed  during  trial,  557. 
SERVICE— 

of  original  notice,  when  can  not  be  collaterally  attacked,  169. 
of  original  notice,  made  by  whom,  172. 
how  served  generally,  173. 
on  a  partnership,  174. 
on  agent  of  a  corporation,  175. 
on  an  agent  employed  in  an  office  or  agency,  176. 
on  municipal  corporation,  177. 
on  a  county,  178. 
on  minors,  179. 
on  insane  persons,  180. 
on  prisoners  in  the  penitentiary.  181. 
See  Original  Notice;    see  Return, 
of  subpoena  on  witnesses,  362;    see  Subpoena, 
of  notice  to  take  depositions,  370. 
of  notice  to  take  depositions  on  commission,  375. 
of  notice  of  filing  depositions,  395. 
acceptance  of  notice  to  take  depositions,  376. 
of  notice  in  action  of  right,  856. 
of  writ  of  replevin,  903. 

of  notice  of  foreclosure  and  sale  of  chattel  property,  977. 
of  writ  of  habeas  corpus,  1037. 
of  precept  in  habeas  corpus  case,  1041. 
of  attachment  in  habeas  corpus  case.  1045. 
of  notice  of  hearing  of  motion,  how  made,  1164. 
form  of  acceptance  of  service  of  notice  of  application  for  the  ap- 
pointment of  a  receiver,  1237. 
of  notice  of  appeal.  1322.  1383. 

form  of  acceptance  of,  1322. 
of  abstract,  1338,  1386. 

SETTLEMENT— 

of  claims  by  an  assignee,  941. 

SHERIFFS— 

election  and  term  of,  25. 
duty  of,  805,  806,  1272,  25,  26. 


INDEX.  767 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420 

SHERIFFS  (continued)— 

action  against  when  barred,  144. 
duty  of  in  attachment  cases,  730,  764. 

See  Attachment. 

when  to  take  answer  of  garnishee,  771,  772. 
must  administer  oath  to  garnishee,  772. 
return  under  attachment,  768. 

form  of,  768. 

liable  if  he  takes  the  wrong  property,  818. 
return  on  order  of  replevin,  905. 
See  Execution;     see  Sheriff's  Sale;    see  Original  Notice;     see 

Sheriff's  Deed. 
SHERIFF'S   DEED— 

requisites  and  effect  of,  1267. 
form  of,  1267. 

form  of  when  equity  of  redemption  only  is  sold,  1267. 
when  it  is  constructive  notice,  1268. 
SHERIFF'S  SALE— 

what  law  is  applicable  to,  1256. 

See  Execution;    see  Sheriff;    see  Sheriff's  Deed, 
of  notice  of  the  sale,  1277. 
selling  without  notice,  1278. 
time  and  manner  of  sale,  1279. 
form  of  notice  of  sale,   1279. 
of  postponing  the  sale,  1280. 
of  the  surplus  arising  from  the  sale,  1281. 
proceedings  when  property  is  unsold,   1282. 
form  of  venditioni   exponas,   1282. 
effect  of  sale  without  notice  to  the  defendant,  1283. 

form  of  notice,  1283. 
of  plan  of  sale  by  defendant,  1284. 
when  sale  will  be  set  aside,   1285. 
sale  will  not  be  set  aside,  1286. 

sales  may  be  set  aside  when  purchaser  fails  to  pay,  1287. 
sales  set  aside  when  defendant  has  no  title,  1288. 
of  the  rule  of  caveat  emptor,   1289. 
disposition  of  money  and  choses  in  action,  1290. 
satisfying  judgments  against  an  executor  or  decedent,  1291. 
form  of  petition  to  subject  real  estate  to  the  payment  of  a  judg- 
ment against  an  executor  or  decedent,  1291. 

form  of  notice  of  such  proceedings,  1291. 
setting  off  mutual  judgments,  1292. 
sale  of  leasehold   interest,  1293. 
appraisement  of  personal   property,   1294. 
form  of  notice  to  choose  appraisers,  1294. 
form  of  appointment  of  appraisers,  1294. 
form   of   oath   of  appraisers,    1294. 
form  of  appraisement,  1294. 
of  the  return,  1295. 

rights  of  the  purchaser  and  who  may  purchase,  129'i. 
return  of  purchase  money  canceling  satisfaction.  1297. 
SHORTHAND  REPORTER— See   Reporter,   Shorthand;    district  court, 
Superior  Court. 

notes  of,  how  made  part  of  record  on  appeal,  589,  533. 
SICKNESS— 

of  judge,  court  adjourned  for,  28. 
SIGNATURE— 

to  pleadings  and  form  of,  247. 

denial  of  to  written  instruments,  291,  292,  293,  294. 


708  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

SIGNATURE  (continued)— 

when  deemed  genuine,  291. 

form  of  answer  denying,  296. 

and  seal  of  officer  to  deposition  or  affidavits,  presumptive  evidence 
of  what,  434. 

verdict  must  be  signed,  565. 

of  judge  to  bill  of  exceptions,  598. 
SLANDER— 

limitation  of  action  for,   141. 

requisites  of  petition  in  action  for,  236. 

See  Libel. 
SPEED— 

of  trains,  894. 
SPECIAL— 

verdict,  when  may  be  rendered,  568,  569,  570. 

interrogatories,  when  submitted  to  jury,  569,  570. 

form  of  finding  on  by  jury,  572. 
SPECIAL  TERMS— 

may  be  held  when,  24. 
SPECIAL  PROCEEDINGS— 

a  class  of  remedies,  1. 

what  classes  of  remedies  are,  3. 

actions  by,  how  prosecuted,  5. 

effect  of  error  in  kind  of  proceedings,  10. 
how  remedied,  11. 
when  objection  waived,  12. 

of  ordering  a  change  in  the  proceedings,  15. 

uniformity  of  procedure,  16. 
SPECIES— 

of  personal  property,  pleaded,  212,  241. 
SPECIFIC — See  Pleading;    see  Motions;    see  Answers;    see  Denials. 

motion  for  more  specific  statement,  when  it  lies,  243. 
form  of  motion,  243. 

demurrer  must  be,  271. 

denials,  286,  295,  298. 

Sea  Attachments. 
SPECIFIC  PERFORMANCE— 

action  for,  when  barred,  149. 
SPECIFIC  PROPERTY— 

when  proper  to  allow  as  alimony,  1025. 
STATE— 

statute  of  limitations  does  not  run  against,  13' \ 

can  not  be  sued  except  by  express  statutory  p.uthority,  253. 

legislature,  proceedings  of,  how  proved,  413. 

effect  of  affidavit  taken  out  of  the  State,  437.. 

attachment  for  debts  due,  757. 
bonds  not  required,  758. 
damages,  759. 
pleadings  in  such  cases,  760. 

process  must  run  in  name  of,  358. 

STATEMENT— 

of  claim  in  original  notice,  168. 

more  specific,  when  motion  for  lies,  243. 

form  of,  243. 
of  cause  of  action  in  pleading,  224,  248. 

must  be  of  material  facts  only,  224,  225. 

not  of  evidence,  224. 


IXDEX.  769 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

STATEMENT  (continued)— 

of  fraud  in  pleading,  227. 

should  be  none  in  pleading  of  matters  of  which  courts  take 

judicial  notice,  226. 

implied  promise  need  not  be  alleged  in  pleading,  228. 
time,  quantity  and  value  to  be  stated  when,  229. 
right  to  sue  should  be  shown  by,  in  pleading,  232. 
of  petition  for  a  tort,  235. 

See   Petition, 
of  case  by  counsel,  502. 
of  claim  for  mechanic's  lien,  form  of,  1130. 
See  Pleading;    see  Answer;    see  Reply. 
STATUTES— See  Limitation  of  Actions, 
pleading  of,  237. 
amendment  of,  354. 

printed  copies  admissible  in  evidence,  414. 
and  rules  regulating  practice  in  supreme  court,  1379  to  1402. 
STATUTE  OP  FRAUDS— See  Demurrer;    see  Evidence, 
contracts  within,  452  to  459. 

effect  of  statutory  provision  on  the  contract,  458. 
part  performance,  459. 

STATUTE  OP  LIMITATIONS— See  Limitation  of  Actions. 
STATUTE  PENALTY— 

limitations  of  actions  for,  141. 
STAY — See  Executions. 
STAY  BONDS— See  Executions. 
STOCK— 

failure  to  set  out  notice  in  action  for  killing,  ground  of  demurrer, 

270. 

form  of  petition  against  railroad  for  killing,  887. 
form  of  notice  and  affidavit,  887. 
what  is  "running  at  large,"  888. 
fencing  at  depot  grounds,  highways,  etc.,  889. 

of  failure  to  repair  fences,  890. 
of  double  damages,  891.  » 

requisites  of  the  affidavit  and  notice,  892. 
speed  of  trains,  894. 
practice,  evidence,  etc.,  893. 
STRUCK  JURY— 

how  obtained,  500. 
STYLE— 

of  petition;    see  Petition. 
SUBMISSION— 

to  arbitration;  see  Arbitration;    see  Arbitrators, 
of  causes  in  supreme  court,  1390,  1406. 
setting  submission  aside,  1407. 
SUBPOENA— 

must  run  in  the  name  of  "the  State  of  Iowa,"  358. 
issued  by  the  clerk  on  request  of  either  party,  357. 
to  testify,  form  of,  358. 
duces  tecum,  358. 
served  by  whom,-  357. 

how  far  witnesses  can  be  brought  on,  359. 
in  case  of  garnishees,  359. 
fees  of  witnesses,  360. 
penalty  for  disobeying  a,  361. 
civil  liability  to  party  injured,  361. 
mode  of  serving,  362. 
Vol.  II.— 49. 


770  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

SUBPOENA  (continued)— 

prisoners  as  witnesses,  363. 

fees  of  sheriff  for  transportation  of  prisoner,  363. 

return  of  service,  what  must  show,  364. 

form  of  in  case  of  personal  service,  364. 
form  of  where  witness  is  not  found,  364. 
when  the  return  must  be  sworn  to,  365. 
of  the  return  of,  365. 
effect  of  party  to  the  action  failing  to  obey  a  subpoena,  366. 

when  pleading  will  be  taken  as  true,  366. 
failure  to  obey  a  contempt,  996. 

See  Contempt;    see  Service;    see  Return. 
SUB-CONTRACTORS— 

of  claims  of  on  public  buildings  and  improvements,  1118,  1119, 

1120. 
who  are,  1140. 

lien  of  how  preserved  and  how  discharged,  1141. 
form  of  notice  of  filing  claim  of,  1141. 
form  of  bond  to  discharge  lien  of,  1141. 
extent  of  lien  of,  when  filed  after  thirty  days,  1143. 
SUBSTITUTION— 

of  parties,  when  permitted,  56,  58,  59,  60,  91,  92. 
when  not  permitted,   92,  93. 
of  pleadings,  when  permitted,  356. 
SUBSCRIBING  WITNESSES— See  Evidence. 

SUMMARY  PROCEEDINGS— 
when  allowed,  1298. 
form  of  the  proceeding,   1299. 
form  of  motion  for,  1299. 
form  of  motion  when  the  action  is  against  an  officer  for  refusing 

to  pay  over,  1299. 
of   notice,   1300. 

form  of,  1300. 
of  the  hearing,  1301. 

SUNDAY— 

when  writ  of  attachment  will  issue  on,  714. 
when  execution  may  be  issued  on,  795. 
when  original  notice  served  on;    see  Original  Notice, 
when  courts  open  on,  34. 

SUPERIOR  COURTS— 

establishment  of,  35. 

its  officers,  36. 

its  terms,  37. 

its  jurisdiction,  38. 

jurors  in,  39. 

its  abolition,  41. 

judgments  of,  how  made  liens,  39.  688. 

filing  transcripts  of  in  district  court,  688. 

SUPPLEMENTAL— 

pleadings,  when  permitted,  349. 

proceedings  to  executions;  see  Auxiliary  Proceedings. 

SUPERSEDEAS— 

bond,  requisites  of,  1324. 

form  of,  1324. 

proceedings  when  defective,  1325. 

form  of  supersedeas,  1325. 

See  Appeals;    see  Bonds. 


INDEX.  771 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

SUPREME  COURT— 

organization  of,  17,  1380. 
number  and  classification  of  judges,  17,  1380. 
terms  of,  18,  1382. 

clerk  of;    see  Clerk  of  Supreme  Court, 
reporter  of;    see  Reporter  of  Supreme  Court, 
adjournment  of,  20,  1382. 

division  into  two  sections,  opinions  of  judges,  21. 
jurisdiction  of  appellate  in  chancery,  22,  1381. 
correction  of  errors  at  law,  22,  1381. 
supervisory  control  over  inferior  tribunals,  22,  1381. 
original  in  certain  cases,  22,  1381. 
may  suspend  or  revoke  attorney's  license,  22,  1381. 
may  admit  persons  to  practice  law,  22,  1402. 
when  amount  in  controversy  does  not  exceed  one   hundred 

dollars,  22,  1381. 

will  not  review  errors  in  a  cause  where  venue  has  been  er- 
roneously changed,  135. 
amendments  after  trial  by,  346. 
action  of,  on  allowance  of  amendments  below.  348. 
review  of  question  of  burden  of  the  issue  by,  539. 
setting  aside  verdicts  in,  615. 
advancing  causes  in,  1385,  1404.    '' 
causes,  how  submitted,  1390,  1406. 
submission  set  aside,  when,  1407. 

how  appeals  taken  to;    see  Appeals;    see  Abstracts;    see  Argu- 
ments. 
SURETIES— 

effect  of  limitations  as  to,  139. 

justification  of.  727,  802. 

form  of,  727,  802. 

preventing  or  determining  the  stay  of  execution,  804. 

liability  of  on  official  bonds,  873. 

See  Principal  and  Surety;    see  Security;    see  Justification. 
SURPRISE— 

new  trial  on  ground  of,  611. 
SURPLUS— 

arising  from  sale  of  mortgaged  real  estate,  how  applied,  1152. 
SURRENDER— 

court  enforcing  of  property  of  defendant  in  execution,  discovered 

in   supplemental    proceedings,    850. 
SURVIVING  PARTNER— 

may  sue,  219. 
TALESMAN— 

as   jurors,    495. 

how  and  when  may  be  selected,  495. 
TELEGRAPH— 

actions  against  telegraph  companies,  venue  of,  105,  108. 

TELEPHONE— 

actions  against  telephone  companies,  venue  of,  105,  108 

TENANTS— 

possession  of  one  in  common  is  the  possession  of  all,  149. 
in  possession,  liability  of  for  rents  in  action  of  right,  863. 
in  common,  property  of  sold,  how  redeemed,  1264. 

TENDER— 

form  of  answer,  pleading,  313. 


772  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

TERM— 

trial,  what  is,  476. 

See  Pleading. 
TERMS— 

of  redemption,  1259,  1260. 
TERMS   OF   COURT— 

supreme  court,  18,  1382. 

of  district  court,  how  fixed,  24. 

of  superior  court,  37. 

when  special  term  may  be  ordered,  24. 
when  term  adjourned  by  written  order,  28. 

original  notice  must  fix  term  at  which  defendant  is  to  appear, 

167. 

TESTIMONY— See  Evidence. 
TIMBER— 

measure  of  damages  for  burning,  growing,  885. 
TIME— 

of  applying  for  change  of  venue,  125. 

of  serving  original  notice  and  filing  petition,  172. 

of  appearance  of  defendant,  172. 

when  must  be  alleged,  236. 

of  answering  interrogatories  to  pleadings,  466. 

to  make  application  for  continuance,  effect  of,  480. 

of  making  order  of  reference,  581. 

of  taking  an  appeal,  how  computed,  1313. 
TITLE— 

how  alleged,  214. 

to  property,  how  affected  by  re-trial  of  cause,  663. 

See  Pleading;    see  Action  of  Right. 
TITLE  BOND— See  Foreclosure  of  Mortgages. 
TOOLS— See  Exemptions. 
TORT— 

limitation  of  actions  for,  141. 

statements  of  petition  in  action  for,  235. 

proceedings  in  attachment,  when  demand  is  founded  on,  717. 

when  action  in  attachment  based  on,  719. 

See  Pleading;    see  Petition;    see  Attachment;    see  Actions. 
TRANSCRIPT— 

when  must  be  filed  in  cases  of  cnange  of  venue,  131. 

execution  on  form  of,  from  justice  of  the  peace,  799. 

of  record  on  appeal  to  supreme  court;    see  Appeals. 
TRANSFER— 

of  cause,  when  made,  11. 
TRESPASS— 

what  is,  1302. 

when  the  action  lies,  1303. 

who  may  maintain,  1304. 

when  it  will  not  lie,  1305. 

form  of  petition  for,  1306. 

of  practice,  1307. 
TREASURER,  COUNTY— 

action  against,  when  barred,  144. 
TRIAL— 

of  equitable  issues  in  law  actions,  13,  474. 

when  postponed  on  account  of  failure  to  answer  interrogatories 
to  pleadings,  468. 

what  is  a,  471. 


INDEX.  773 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

TRIAL  (continued) 

issues  of  law  first  tried,  471. 

what  issues  tried  by  a  jury,  471. 

when  an  issue  of  fact  arises,  472. 

equitable  issues,  how  tried,  473. 

order  of  trial,  474,  475. 

term,  476. 

separate,  when  allowed,  477. 

proceedings,  when  defendants  are  not  all  served,  478. 

of  challenges  to  jury;    see  Challenge. 

jurors,  number  of,  497. 

when  jury  trial  will  be  waived,  574. 

of  equitable  actions,   577,  578. 
See  Courts;    see  Appeals. 

incidents  of,  465  to  502. 

to  the  court,  574  to  578. 

by  referees,  584  to  587. 

of  actions  for  divorce  to  annul  marriages  and  for  alimony,  1008. 

in  habeas  corpus  case,  1048. 

In  actions  of  quo  warranto,  1230. 

amendment  after,  in  supreme  court,  346. 
TRUST  DEED— 

See  Foreclosure  of  Mortgages. 
TRUSTEE— 

when  may  sue  in  his  own  name,  64. 

See  Quo  Warranto. 
UNCONSTITUTIONAL— 

sections  3487,  3488  and  3489,  of  code  in  part,  93. 
UNDUE  INFLUENCE— 

change  of  venue  for,  119. 

uniformity  in  procedure,   16. 
UNINCORPORATED  SOCIETY— 

who  may  sue  for,  64,  68. 
UNITED  STATES  COURTS— 

judgments  of  liens,  when;  see  Conflict  between  Courts;    see  Judg- 
ments. 

UNLAWFUL  DETENTION— See  Replevin  and  Detinue. 
UNKNOWN  DEFENDANTS— 

how  sued,  84. 

how  served  with  notice,  192. 

form  of  notice,  192. 

service  of  how  proved, .  192. 
of  petition  in  case  of,  222. 
UNLIQUIDATED  DEMAND— 

limitation  of  action  on,  141. 
UNWRITTEN   PRACTICE— 

in  the  supreme  court,  1403  to  1411. 
USURY— 

form  of  answer,  pleading,  313. 
VACANCIES— 

in   referees,   how  filled,  582. 
VACATION— 

judgment  may  be  entered  in,  650. 

judge  may  punish  contempt  in,  1002. 

and  modification   of   injunctions,    1087. 

appeal  from  judgment  rendered  in,  time  of,  1313. 
See  Conveyance. 


774  INDEX. 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  771  to  1420. 

VACATION  OP  JUDGMENTS— 

when  judgments  will  be  modified  or  vacated,  1209. 

in  case  of  mistake,  neglect  or  omission  of  the  clerk,  1210. 

for  fraud,  1211. 

for  erroneous  proceedings  against  a  minor,  1212. 
or  a  person  of  unsound  mind,  1212. 

when  one  of  the  parties  dies  before  judgment  is  rendered, 
1213. 

for  unavoidable  casualty  or  misfortune,  1214. 

for  error  in  judgment  shown  by  a  minor  within  one  year  after 
arriving  at  full   age,  1215. 

when  courts  of  equity  will,  1216. 
•when  the  application  may  be  by  motion,  1217. 
when  it  must  be  by  petition,  1218. 

when  grounds  are  discovered  after  term,  1219. 
pleading,  practice,  etc.,  1220. 
must  be  a  valid  defense  to  the  action,  1221. 

form  of  petition  to  vacate,  1221. 
Injunction  may  issue  to  suspend  proceedings,  1222. 
of  the  judgment,  1223. 
VALUE— 

when  to  be  plead,  229. 
how  proven;  see  Evidence. 
VARIANCE— 

between  notice  and  petition,  effect  of,  168. 
amendments  in  cases  of,  between  pleadings  and  proof,  345. 
question  of,  can  not  be  first  raised  in  the  supreme  court,  1368. 
VENDITIONI  EXPONAS— See  Execution. 
VENDOR— 

actions  to  enforce  lien;    see  Venue. 
VENUE— 

of  actions,  98  to  111;   see  Change  of  Place  of  Trial. 
of  actions  to  recover  real  property,  98. 

of  partition  of  real  property,  98. 

for  injuries  to  real  property,  98. 

In  foreclosure  cases,  99. 

in  foreclosure  of  mechanics'  liens,  99. 

to  recover  specific  personal  property,  100,  897. 

for  fines,  penalties  and  forfeitures,  101. 

against  public  officers,  101. 

on  official  bonds,  101. 

in  actions  aided  by  attachment,  102. 

in  garnishment  proceedings,  103. 

in  cases  at  place  where  contract  is  to  be  performed,  104. 

of   actions   against   railway,   telegraph   and   telephone   com- 
panies, 105. 

In  actions  against  construction  companies,  106. 

in  actions  against  insurance  companies,  107. 

in  cases  of  suits  growing  out  of  the  business  of  an  office  or 
agency,  108. 

in  cases  of  personal  actions,  109. 

in  actions  for  divorce,  110. 

of  actions  to  enjoin  judgments,  111. 
VERDICT— 

when  rendered  after  close  of  term,  30. 

of  majority  of  jury.  499. 

manner  of  finding,  564. 

must  be  in  writing  and  signed  bv  the  foreman,  565. 

error  in  may  be  corrected,  565,  567. 


INDEX.  775* 

Volume  I,  Sections  1  to  770;    Volume  II,  Sections  "771  to  1420. 

VERDICT  (continued)— 

may  be  put  in  form  by  the  court,  565. 

when  sufficient  in  form,  565. 

of  polling  the  jury,  566. 

when  it  may  be  sealed,  567.  j 

may  find  a  general  or  special  verdict,  568. 

when  judgment  may  be  rendered  on  special,  568,  570. 

when  special  finding  controls  verdict,  570. 

when  damages  must  be  assessed  by,  571. 

forms  of  for  plaintiff,  572. 

for  defendant,  572. 

for  intervenor,  572. 

for  plaintiff  in  action  of  replevin,  572. 

of  special  finding  of  facts,  572. 
when,  must  find  value  of  property,  572. 
determined  by  chance,  ground  of  new  trial,  608. 
affidavits  of  juries,  when  received  to  impeach  verdict,  609. 

received  to  uphold,  609. 
effect  of  use  of  intoxicating  liquors  on,  610. 
not  sustained  by  the  evidence,  new  trial,  614. 
setting  aside  in  supreme  court,  practice,  615. 
judgment  on  special,  637. 
judgment  on,  form  of,  638. 

notwithstanding  verdict,  639. 
when  may  be  directed  by  court,  648. 
in  actions  of  right,  what  may  contain,  860. 
requisites  of,  in  replevin,  907. 
VERIFICATION— 

form  of,  to  action  on  account,  250. 

when  reply  must  be  verified,  325. 

when  pleadings  need  not  be  verified;  332. 

answer  of  a  guardian,  executor  or  prisoner  need  not  be,  332. 

pleading  controverting  answer  of  garnishee  need  not  be,  332. 

not  required  to  action  grounded  on  personal  injury,  332. 

not  required  to  a  reply  in  habeas  corpus,  332. 

not  required  to  amendment  to  pleading,  332. 

need  not  be  when  statements  might  subject  party  to  criminal 

prosecution,  332. 

when  pleading  is  verified,  all  subsequent  pleadings  must  be,  333. 
must  be  verified  in  cases  of  replevin,  333. 

habeas  corpus,  333. 

injunction,  333. 

attachment,  333. 

forcible  entry  and  detainer,  333. 

in  actions  to  quiet  title,  333. 

in  actions  to  enforce  landlord's  lien,  333. 

in  other  cases,  333. 
to  what  the  verification  applies,  334. 
what  the  affidavit  must  state,  334,  335. 
by  whom  must  be  made,  335. 

when  by  agent  or  attorney,  335. 

when  by  a  corporation,  335. 
may  be  amended,  334. 

of  averments  of  competency,  when  necessary,  335. 
what  the  certificate  must  state,  336. 
form  of  verification  by  a  party.  336. 

by  an  agent  or  attorney,  336. 

in  case  of  attachment,  336. 

by  an  agent  or  attorney  in  other  cases,  336. 

by  one  not  a  party,  agent  or  attorney,  336. 


